Gary Lee Burnett, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1598

Gary Lee Burnett, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed June 1, 2020
Affirmed
Ross, Judge

Mille Lacs County District Court
File No. 48-CR-10-2092

Gary L. Burnett, Jr., Faribault, Minnesota (pro se appellant)

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Joe Walsh, Mille Lacs County Attorney, Pakou Moua, Assistant County Attorney, Milaca,
Minnesota (for respondent)

Considered and decided by Segal, Chief Judge; Ross, Judge; and Cochran, Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
A jury found Gary Lee Burnett guilty of first- and second-degree criminal sexual
conduct, and the district court sentenced him to 156 months in prison. Burnett
unsuccessfully moved the district court to correct his allegedly illegal sentence. We affirm
because Burnett failed to establish that his sentence was unauthorized by law.

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FACTS
A six-year-old girl said that Burnett sexually abused her between 2009 and August
2010. The state charged Burnett with four coun ts of criminal sexual conduct, and a jury
found him guilty on one count of criminal sexual conduct in the first degree (“Count I”)
and two counts in the second degree (“Count III” and “Count IV”). The verdict did not
designate the crimes’ order of occurrence.
Burnett asked to be sentenced first on the least serious offense followed by the most
serious and argued that the remaining offense was a lesser-included version of the most
serious offense. He also moved for a downwar d sentencing departure. The district court
held that Count III was a lesse r-included offense of Count I and did not sentence Burnett
on that count. It denied the departure motion but agreed to sentence him first on Count IV
and then on Count I, with the resulting 36- and 156-month prison terms to run concurrently.
Burnett recently moved the district cour t to modify his sentence under Minnesota
Rule of Criminal Procedure 27.03, subdivision 9, arguing that the trial court erred by
sentencing him first on Count IV and then on Count I. The district court concluded that
Burnett’s sentence was not unau thorized by law and therefor e construed the motion as a
postconviction challenge to his sentence and rejected it as untimely.
Burnett appeals.
D E C I S I O N
Burnett challenges the district court’s denial of his sentencing challenge,
maintaining that the court erroneously conc luded his sentence was not unauthorized by
law. We review a district court’s denial of a postconviction pe tition for an abuse of

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discretion, reviewing legal conclusions de novo and factual findings for clear error. Riley
v. State, 819 N.W.2d 162, 167 (Minn. 2012); see also Townsend v. State, 834 N.W.2d 736,
738 (Minn. 2013) (articulating the same standard of review for the denial of a motion to
correct a sentence). Applying our discretion to affirm the district court on any basis
supported by the record, see Dukes v. State , 718 N.W.2d 920, 921 –22 (Minn. 2006), we
choose not to address whether Burne tt’s motion was a time-barred petition for
postconviction relief because it fails on its me rits when treated as a sentence-correction
motion under rule 27.03.
A defendant may at any time move to corre ct an illegal sentence. Minn. R. Crim.
P. 27.03, subd. 9. He can prev ail under this rule only by es tablishing that his sentence
violated the law. See Williams v. State, 910 N.W.2d 736, 740, 743 (Minn. 2018) (holding
that the defendant bears the burden of proof under the rule). Burnett does not establish that
his sentence violated the law.
Burnett challenges the district court’s orde r of sentencing, maintaining that the court
should have imposed the “most favorable” sentence by sentencing Count I first, followed
by Count IV. Burnett cites no statute or caselaw articulating a “most favorable”
requirement. When a district court senten ces a defendant who has committed multiple
offenses, it must sentence each offense in the order in wh ich they occurred. State v.
Williams, 771 N.W.2d 514, 522 (Minn. 2009). But here the order of Burnett’s crimes was
undetermined. Neither the verdict nor the sent encing proceeding established a sequence.
And Burnett does not identify which of his offenses occurred before the other. Accepting
Burnett’s request, the district court sentenced him first on the less serious offense followed

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by the more serious. Citing no legal authority supporting the proposition that the district
court’s approach was unlawful, Burnett fails to meet his burden under rule 27.03.
Burnett unconvincingly relies on State v. DeRosier, 719 N.W.2d 900 (Minn. 2006),
to urge a different outcome. In DeRosier, the supreme court, reasoning from Blakely v.
Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 2537 (2004), concluded that a jury should
have determined the date of DeRosier’s offense after the legislature modified the
sentencing guidelines to increa se the presumptive prison term for first-degree criminal
sexual conduct. DeRosier , 719 N.W.2d at 902–03. The supreme court explained that
because determining which presumptive sent ence applied depended on a fact issue—the
date of the offense—a jury rather than a judge must decide the issue. Id. at 903. DeRosier
decided only who makes the date-of-offense determination and does not support Burnett’s
proposition that a district court must impos e sentences in the “most favorable” manner
when the date of offenses is unknown.
Because Burnett has failed to show that hi s sentence was contrary to law, we affirm
the district court’s decision to deny his motion to correct the sentence.
Affirmed.