State of Minnesota, Respondent,

This opinion will be unpublished and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
A19-1889

State of Minnesota,
Respondent,

vs.

Davone Laquin Jordan,
Appellant.

Filed November 23, 2020
Affirmed
Johnson, Judge

Olmsted County District Court
File Nos. 55-CR-19-2258, 55-CR-19-632

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

Mark A. Ostrem, Olmsted County Attorney, Jennifer D. Plante, Assistant County Attorney,
Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, Ab igail H. Rankin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Frisch, Pres iding Judge; Johnson, Judge; and Schellhas,
Judge.


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

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U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
Davone Laquin Jordan plead ed guilty to two co unts of felony domestic assault
arising from two different incidents that occurred on two different dates and involved two
different women. The district court imposed consecutive prison sentences of 32 months
and 12 months and one day. Jordan’s primary argument on appeal is that the consecutive
sentences are disproportionate to the severity of his conduct. We conclude the district court
did not abuse its discretion by imposing consecutive sentences and, therefore, affirm.
FACTS
In January 2019, the state charged Jordan with two co unts of felony domestic
assault, in violation of Minn. Stat. § 609.2242, subd. 4 (2018), and one count of threats of
violence, in violation of Minn. Stat. § 609. 713, subd. 1 (2018). Th e state alleged that,
during the evening of January 23, 2019, Jordan and his th en-girlfriend argued at the
apartment they shared and that Jordan became angry, stood close to her with clenched fists,
threatened to hurt her or me mbers of her family, grabbed her by the shoulders and threw
her onto a couch, and tried to choke her with a scarf.
Approximately two months later, the state charged Jordan with domestic assault by
strangulation, in violation of Minn. Stat. § 609.2247, subd. 2 (2018); felony domestic
assault, in violation of Minn. Stat. § 609.2242, subd. 4; threats of violence, in violation of
Minn. Stat. § 609.713, subd. 1; and false im prisonment, in viola tion of Minn. Stat.
§ 609.255, subd. 2 (2018). The state alleged that, during the evening of March 31, 2019,
Jordan and a woman with whom he was in a romantic relationship (a different woman from

3
the woman involved in the prior incident) argue d in a motel room they shared and that
Jordan became angry, slammed her into a wall, squeezed her throat with both hands to the
point that she nearly lost consciousness, slapped her face twice, prevented her from leaving
the room by barricading the door, and threatened to kill her if she tried to leave.
In May 2019, Jordan and the state entered into a plea agreement. Jordan agreed to
plead guilty to two counts of felony domestic assault, one count in each case. The state
agreed to dismiss the remain ing five charges and agreed to a downward dispositional
departure so long as the assigned correctional officer determined that Jordan is particularly
amenable to probation. The pa rties also agreed th at Jordan would be released to an in-
patient treatment facility pending sentencing and that the sentencing hearing would not be
held until at least 100 days later. The parties further agreed that if Jordan were discharged
from treatment or were to leav e the treatment facility for a ny other reason, he would be
required to voluntarily return to jail w ithin two days and would receive consecutive
executed sentences if he failed to do so.
During the plea hearing, Jo rdan admitted that, on January 23, 2019, he grabbed his
then-girlfriend by her shoulders and threw her onto a couch. He also admitted that, on
March 31, 2019, he slapped the second woman. The district court accepted Jordan’s pleas
and adjudicated him guilty of both offenses. The district court implemented the parties’
plea agreement by releasing Jordan to an in-p atient treatment facility pending sentencing
and scheduling the sentencing hearing for a date approximately 100 days in the future.
Jordan began in-patient tr eatment on May 16, 2019. The district court was advised
on June 11, 2019, that, earlier that day, Jo rdan was “discharged unsuccessfully due to

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several behavioral problems.” The following day, the district court gave notice to the
parties that it would issue an arrest warrant if Jordan did not report to the Olmsted County
jail by June 13, 2019, at 2:00 p.m. Jordan di d not do so. The dist rict court issued the
warrant on June 14, 2019. Jordan was arrested and taken into custody on July 16, 2019.
Before the sentencing h earing, Jordan moved for a downward dispositional
departure in each case. At the sentencing he aring, the district court stated that it had
reviewed the pre-sentence investigation (PSI) report, a letter that Jordan wrote to the court,
and a memorandum in support of the departure motion. The district court also listened to
two victim-impact statements and Jordan’s allocution. The state opposed the motion and
requested that the district court follow the recommendation in the PSI report to impose
consecutive executed sentences. The district court denied the motion and imposed
consecutive executed sentences of 32 months of imprisonment in the first case and 12
months and one day of imprisonment in the second case, resulting in an aggregate term of
imprisonment of approximately 44 months. Jordan appeals.
D E C I S I O N
A.
Jordan first argues that the district cour t erred by basing its se ntencing decision in
the second case on a mistaken belief that he had pleaded guilty to domestic assault by
strangulation, not domestic assault. Jordan contends that, as a result of the alleged mistake,
the district court sentenced hi m for conduct for which he was not convicted, contrary to
State v. Womack , 319 N.W.2d 17 (Minn. 1982), in wh ich the supreme court held that a

5
district court may not impose an aggravat ed sentence based on the alleged conduct
associated with a charge that has been dismissed. Id. at 19.
Jordan’s argument is based on the fact that, at the outset of the sentencing hearing,
the district court stated that Jordan would be sentenced for “domestic assault felony” in the
first case and “domestic assau lt strangulation” in the second case. The district court’s
reference to “domestic assault strangulation” was inaccurate because Jordan pleaded guilty
to felony domestic assault in both cases a nd because a charge of domestic assault by
strangulation was dismissed in the second case.
Despite the misstateme nt, the record does not indicate that the district court actually
misunderstood the offense of conviction. The district court stated that it had reviewed the
PSI report, which correctly identified the offense of conviction in the second case as felony
domestic assault. During the remainder of the sentencing hearing, the district court made
no reference to the allegation that Jordan strangled the second woman on March 31, 2019.
In addition, the warrant of commitment correctly identified the offense of conviction in the
second case as felony domestic a ssault. We are not convinced that the district court’s
misstatement at the beginning of the senten cing hearing (to which Jordan’s attorney did
not object) demonstrates that the district court sentenced Jordan based on a mistaken belief
that he was convicted of domestic assault by strangulation.
Thus, the district court di d not err by basing its sent encing decision on alleged
conduct underlying a charge that was dismissed.

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B.
Jordan also argues that the district c ourt erred by imposing consecutive sentences
on the ground that the resulting punishment is disproportionate to the conduct for which he
was convicted. Jordan contends that this c ourt should focus on the nature of his conduct,
not the fact that he was convicted of a felony, because his offenses are felonies only because
of his prior convictions.
The Minnesota Sentencing Guidelines gene rally provide for presumptive sentences
for felony offenses. Minn. Sent. Guidelines 2.C (2018). “Generally, when an offender is
convicted of multiple current offenses, . . . concurrent sentencing is presumptive.” Minn.
Sent. Guidelines 2.F (2018). But in cert ain situations, consecutive sentences “are
presumptive (required by the Guidelines).” Minn. Sent. Guidelines 2.F.1 (2018). And in
certain other situations, consecutive sentences “are permissive (may be given without a
departure).” Minn. Sent. Guidelines 2.F. 2 (2018). Among the situations in which
consecutive sentences are permi ssive is the situation in wh ich “the offender is being
sentenced for multiple current felony convictions for crimes on the list of offenses eligible
for permissive consecutive sentences in s ection 6” of the guide lines. Minn. Sent.
Guidelines 2.F.2.a(1)(ii) (2018).
In this case, Jordan was sentenced on multiple convic tions of felony domestic
assault, in violation of section 609.2242, subdivision 4. That offense is among the offenses
listed in section 6 of the guidel ines. Minn. Sent. Guidelines 6 (2018). Thus, the district
court was permitted to impose consecutive sentences on Jordan.

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But that is not the end of the matter. Jordan contends that, even though consecutive
sentences generally are permitted, the di strict court nonetheless erred by imposing
consecutive sentences instead of concurrent sentences on the ground that his conduct was
not severe enough to warrant consecutive sent ences. He relies on a comment in the
sentencing guidelines stating that, to ensure proportionality, “consecutive sentences should
be limited to more severe offenses.” Minn . Sent. Guidelines cmt. 2.F.01 (2018). In
response, the state argues that Jordan’s aggregate term of imprisonment is not
disproportionate to his conduct because, but for the plea agreement, the two cases would
have proceeded separately to trial and senten cing, and he would have been subject to a
longer aggregate term of imprisonment.
The appellate courts apply an abuse-of-discr etion standard of review to a district
court’s imposition of permissive consecutive sentences. State v. Ali, 895 N.W.2d 237, 247
(Minn. 2017); State v. McLaughlin, 725 N.W.2d 703, 715 (Minn. 2007). A district court
abuses its discretion by imposing permissive consecutive sentences if “‘the sentence is
disproportionate to the offense or unfairly ex aggerates the criminality of the defendant’s
conduct.’” Ali, 895 N.W.2d at 247 (quoting McLaughlin, 725 N.W.2d at 715).
Jordan’s argument—that his aggregat e term of imprisonment arising from
consecutive sentences is disproportionate to the conduct underlying his convictions—is in
conflict with the negotiated plea agreement. At his plea hearing, Jordan specifically agreed
that he would receive consecutive prison sentences if he failed to voluntarily return to jail
within two days of being discharged from treatment. His agreement to that particular term
allowed him to reap the benefits of other term s, such as the state’ s agreement to dismiss

8
five other charges. In addition, Jordan ’s consecutive sentences are based on two
convictions arising from two different incide nts, on two different dates, involving two
different victims. In that way, his case is distinguishable from Ali and McLaughlin, in
which consecutive sentences were imposed on multiple convictions arising from the same
incident. See Ali, 895 N.W.2d at 239-40; McLaughlin, 725 N.W.2d at 706. For these
reasons, it does not appear that Jordan’s consecutive sentences are disproportionate to his
offenses or that they unfairly exagge rate the criminality of his conduct. See Ali , 895
N.W.2d at 247; McLaughlin, 725 N.W.2d at 715-16.
In determining whether a district court abused its discretion by imposing permissive
consecutive sentences, the supreme court ha s compared the total duration of the
consecutive sentences to “past sentences imposed on other offenders.” McLaughlin,
725 N.W.2d at 715 (quotation omitted). Jordan compares his conduct and sentences to the
conduct and sentences in two other cases in which defendants were convicted of multiple
felony domestic-assault charges. See State v. Pennig, No. A12-1648, 2013 WL 4404267,
at *1 (Minn. App. Aug. 19, 2013); State v. Andvik, No. A18-1655, A18-1490, 2019 WL
6112352, at *1-2 (Minn. App. Nov. 18, 2019). Jordan contends that, in those two cases,
the offenders engaged in more serious conduc t than he did but rece ived aggregate prison
terms of only 31 and 37 months, respectively, which are shorter than his aggregate term of
44 months. See Pennig, 2013 WL 4404267, at *1; State v. Andvik, 2019 WL 6112352, at
*1-2. But in both of those cases, the defendants were convicted based on jury verdicts, not
plea agreements, and th e multiple convictions were based on either a single incident or
multiple incidents involving a single victim. See Pennig, 2013 WL 4404267, at *1; State

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v. Andvik, 2019 WL 6112352, at *1-2. Jordan’s consecutive sentences compare favorably
to the consecutive sentences in State v. Maurstad , No. A10-1517, 2011 WL 2982413
(Minn. App. July 25, 2011), review denied (Minn. Sept. 28, 2011), in which a jury found
the defendant guilty of two count s of felony domestic assau lt based on a single incident
involving two victims. Id. at *1. The district court in that case imposed consecutive prison
sentences of 39 months and one year and one day, for a total of approximately 51 months.
Id. Consequently, a comparison of Jordan’s consecutive sentences to consecutive
sentences imposed in other cases does not indica te that his sentences are disproportionate
to his offenses or that they unfairly ex aggerate the criminality of his conduct. See Ali,
895 N.W.2d at 247; McLaughlin, 725 N.W.2d at 715.
Thus, the district court did not err by imposing permissive consecutive sentences.
Affirmed.