Marlow Shelton McDonald, petitioner, Appellant,

This opinion will be unpublished and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
A18-0064

Marlow Shelton McDonald, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed July 30, 2018
Affirmed
Halbrooks, Judge

Blue Earth County District Court
File No. 07-CR-14-1678

Zachary A. Longsdorf, Longsdorf Law Firm, PLC, Inver Grove Heights, Minnesota (for
appellant)

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

Patrick R. McDer mott, Blue Earth County Attorney, Susan B. DeVos , Assistant County
Attorney, Mankato, Minnesota (for respondent

Considered and decided by Rodenberg, Presiding Judge; Halbrooks, Judge; and
Jesson, Judge.
U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
Appellant challenges a postconviction court’s order amending his sentence under
the Minnesota Drug Sentencing Reform Act. We affirm.

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FACTS
Appellant Marlow Shelton McDonald was arrested after selling approximately 12
grams of methamphetamine to a confidential informant in five separate controlled
purchases throughout April 2014. The state charged McDonald with the fo llowing: one
count of first-degree controlled -substance sale under Minn. Stat. § 152.021, subd. 1(1)
(2012); one count of second-degree controlled -substance possession under Minn. Stat.
§ 152.022, subd. 2(a)(1) (2012); two counts of first -degree assault for using deadly force
against a peace officer under Minn. Stat. § 609.221, subd. 2(a ) (2012); one count of
unlawful possession of a firearm under Minn. Stat. § 624.713, subd. 1(2) (2012); and one
count of ineligible person in possession of a firearm (felon convicted of a crime of violence)
under Minn. Stat. § 609.165, subd. 1b(a) (2012). The state charged by amended complaint
one count of third -degree controlled -substance possession under Minn. Stat. § 152.023,
subd. 2(a)(1) (2012) , and one count of fleeing a peace officer in a motor -vehicle under
Minn. Stat. § 609.487, subd. 3 (2012).
A jury found McDonald guilty of the first-degree controlled -substance crime,
second-degree controlled-substance crime, third-degree controlled-substance crime, both
unlawful-possession-of-a-firearm crimes, and the fleeing-a-peace-officer crime. The jury
acquitted McDonald of the first -degree-assault charges. The distri ct court then held a
sentencing trial , and the jury found that McDonald had five or more prior felony
convictions and that his present crimes were committed as part of a pattern of criminal
conduct.

3
The district court committed McDonald to the commissioner of corrections for 316
months for the first -degree controlled-substance conviction,1 60 months for one of the
unlawful-possession-of-a-firearm convictions, and 57 months for the third -degree
controlled-substance conviction to be served concurrently , and 12 months and 1 day for
the fleeing-a-peace-officer conviction to be served consecutively with his other sentences.
McDonald appealed the district court’s judgment and sentence to this court, arguing
that (1) the district court committed evidentiary errors; (2) the evidence was insufficient to
support the jury’s finding that his present offenses were committed as part of a pattern of
criminal conduct; (3) the prosecutor engaged in misconduct; (4) the district court abused
its discretion by departing upward from the presumptive sentencing guidelines; (5) he was
denied his constitutional right to a speedy trial; (6) the district court was biased against
him; and (7) the state engaged in sentencing manipulation . State v. McDonald ,
No. A15 0268, 2016 WL 596222, at *1 (Minn. App. Feb. 16, 2016), review denied (Minn.
Apr. 19, 2016). We determined that McDonald was not entitled to relief on any of these
grounds and affirmed McDonald’s convictions and sentence. Id. at *1-9.
On July 17, 2017, McDonald petitioned the district court for postconviction relief,
arguing that he should be resentenced under the 2016 Minnesota Drug Sentencing Reform
Act (DSRA), 2016 Minn. Laws ch. 160, §§ 1-22, at 1-17, for his first -degree controlled-
substance crime because his sale of approximately 12 grams of methamphetamine would
only constitute a second -degree offense under Minn. Stat. § 152.022, subd. 1(1) (2016).

1 The sentence was a double upward departure based on the finding that McDonald
committed these crimes as part of a pattern of criminal conduct.

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McDonald also argued that his sentence violated his due -process and equal -protection
rights, the district court committed evidentiary errors, the state engaged in sentencing
manipulation, and he received ineffective assistance of counsel. The state conceded that
McDonald should be resentenced under the DSRA but argued that his remaining claims
were Knaffla-barred. See State v. Knaffla , 309 Minn. 246, 252, 243 N.W.2d 737, 741
(1976) (providing that claims that were raised on direct appeal , or were known or should
have been known but were not raised on direct appeal, are procedurally barred).
On August 17, 2017, the postconviction court granted, in part, McDonald’s petition,
determining that McDonald was entitled to resentencing for his first -degree controlled -
substance crime but denied all other requested relief on the ground th at the claims a re
Knaffla-barred. The state asked the postconviction court to grant its request for a double
upward durational departure and to sentence McDonald to 250 months of incarceration .
McDonald requested a presumptive sentence of 125 months. On November 14, 2017, the
postconviction court amended McDonald’s 316-month sentence to a 250-month sentence.
McDonald appeals from both the August 17 and November 14 postconviction orders.
Because his appeal from t he August 17 order is untimely, we accepted jurisdiction only
over the appeal of the November 14 order.
D E C I S I O N
The sole issue before us is whether the postconviction court’s refusal to characterize
his first -degree controlled -substance sale conviction as a second -degree controlled -
substance sale convict ion based on the DSRA’s update d weight thresholds violates
McDonald’s constitutional right to equal protection because it treats offenders differently

5
based on the date s of their crime s and because the pre -DSRA sentencing guidelines
disparately impacted African Americans.
The U.S. Constitution’s Equal Protection Clause provides that “[n]o state shall . . .
deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const.
amend. XIV, § 1. The Equal Protection Clause of the Minnesota Constitution provides that
“[n]o member of this state shall be disfranchised or deprived of any of the rights or
privileges secured to any citizen thereof, unless by the law of the land or the judgment of
his peers.” Minn. Const. art. I, § 2 . To show that a statute violates an appellant’s equal -
protection rights, the appellant bears the heavy burden of proving beyond a reasonable
doubt that the statute treats similarly situated persons differently. State v. Johnson , 813
N.W.2d 1, 10 (Minn. 2012). Under the similarly situated test, a state violates equal
protection if it “prescribes different punishments or different degrees of punishment for the
same conduct committed under the same circumstances by persons similarly situated.” Id.
at 12. The Equal Protection Clause “does not forbid classifications. It simply keeps
governmental decisionmakers from treating differently persons who are in all relevant
aspects alike.” Id. (quotation omitted). “We review the constitutionality of a statute
de novo.” Deegan v. State, 711 N.W.2d 89, 92 (Minn. 2006).
The DSRA became law on May 2 2, 201 6, and changed Minnesota’s drug -
sentencing guidelines by reduci ng sentences for low -level, non violent drug offenders.
2016 Minn. Laws ch. 160, §§ 1 -22, at 1-17. In State v. Kirby, the supreme court applied
the “amelioration doctrine ,” which provides that an amended criminal statute applies to
crimes committed before its effective date if: (1) the legislature has made no statement

6
clearly establishing that it intends to abrogate the amelioration doc trine; (2) “the
amendment mitigate[s] punishment”; and (3) final judgment has not been entered as of the
effective date. 899 N.W.2d 485, 4 90 (Minn. 2017). The supreme court held that the
amelioration doctrine applies to section 18 of the DSRA, which amended the sentencing
grid for drug offenses and became effective on May 23, 2016. Id.; see also 2016 Minn.
Laws ch. 160, § 18, at 15-16; Minn. Sent. Guidelines 4.C (2016).
In State v. Otto , the supreme court clarified that the DSRA amendments to the
weight requirements for drug offenses do not apply to crimes that were committed before
August 1, 2016. 899 N.W.2d 501, 503-04 (Minn. 2017). The supreme court reasoned that
because the DSRA states that the weight requirements for first-, second-, and third-degree
drug sale became “effective August 1, 2016, and appl[y] to crimes committed on or after
that date,” the legislature’s intent was “crystal clear: to abrogate the amelioration doctrine.”
Id. (citing 2016 Minn. Laws ch. 160, §§ 4-5, at 2-6). Therefore, under Otto, a district court
cannot amend the degree of an offender’s drug conviction based on the DSRA’s updated
weight requirements. Id.
In resentencing McDonald under the DSRA, t he postconviction court determined
that the presumptive sentence was 125 months of incarceration . But the postconviction
court doubled the presumptive sentence based on the jury’s determination that M cDonald
is a career offender. See Minn. Stat. § 609.1095, subd. 4 (2012) (providing that a distri ct
court “may impose an aggravated durational departure from the presumptive sentence up
to the statutory maximum sentence if the factfinder determines that the offender has five
or more prior felony convictions and that the present offense is a felony that was committed

7
as part of a pattern of criminal conduct ”). The postconviction court correctly applied the
DSRA’s updated sentencing grid to McDonald’s first -degree controlled -substance sale
conviction, see Kirby, 899 N.W.2d at 487, without applying the DSRA’s updated weight
thresholds to amend the degree of McDonald’s conviction, see Otto, 899 N.W.2d at 503.
McDonald argues that the postconviction court’s refusal to apply the DSRA’s
weight thresholds to persons convicted before August 1, 2016, violates equal-protection
guarantees because he received a more serious sentence than those who committed the
same conduct after August 1, 2016. We must first consider whether McDonald is being
treated differently than others similarly situated who committed the s ame conduct under
the same circumstances. Johnson, 813 N.W.2d at 11. An offender who violates the 2012
version of the controlled -substance statute is not “in all relevant respects alike” to an
offender who violates a 2016 version of the controlled-substance statute. A 2012 offender
committed his crime at a different time than a 2016 offender and violated a different version
of the statute. Cf. Minn. Stat. § 152.022, subd. 1(2) (2016); Minn. Stat. § 152.021, subd.
1(1) (2012).
McDonald next contends “that the racial disparity in drug case sentencing violates
his right to equal protection.” To show that a statute violates the Equal Protection Clause
based on race, an appellant must show “that the statute classifies individuals on the basis
of some suspect trait.” State v. Frazier, 649 N.W.2d 828, 832 (Minn. 2002). If the statute
itself does not classify on the basis of race, an appellant must demonstrate that the statute
creates a racial classification in practice. Id.

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McDonald does not argue that the legislature’s refusal to apply the DSRA weight
thresholds to acts committed before August 1, 2016 , classifies individuals on the basis of
a suspect trait. Instead, he argues that the statute creates a racial classification in practice.
McDonald cites literature that states there is racial disparity between African American and
white offenders for arrest and imprisonment rates related to drug crimes . Although
McDonald discusses overall disparity rates for drug crimes, he has not demonstrated how
the legislature’s decision not to apply the DRSA’s weight thresholds retroactively causes
those disparities, and therefore he has not demonstrate d that the DSRA creates a racial
classification in practice.
The postconviction court did not abuse its discretion in amending McDonald’s
sentence.
Affirmed.