Jesse Toluwannimi Babatunde, petitioner, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1217

Jesse Toluwannimi Babatunde, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed May 17, 2021
Affirmed
Klaphake, Judge*
Hennepin County District Court
File No. 27-CR-18-3346

Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Smith, Tracy M., Presiding Judge; Connolly, Judge; and
Klaphake, Judge.

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

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NONPRECEDENTIAL OPINION
KLAPHAKE, Judge
Appellant Jesse Toluwannimi Babatunde argues that the district court abused its
discretion by denying his petition for postconviction relief because he received purportedly
ineffective assistance of counsel, preventing him from understanding the consequences of
his guilty plea. Because Babatunde’s trial counsel appropriately advised him, we conclude
that the district court did not abuse its discretion by denying Babatunde’s postconviction-
relief petition, and we affirm.
DECISION
Appellant argues that he involuntarily and unintelligently entered his plea because
his counsel erroneously advised him that he could seek a downward durational departure
for his first-degree burglary conviction. Appellant contends that, because his prior March
2017 burglary conviction involved a dangerous weapon, he could not receive a downward
departure on h is current 2018 unlawful-possession-of -ammunition conviction under
Minnesota Statutes section 609.11, subdivisions 8(b), 9 (2020). We review a
postconviction court’s denial of a petition for postconviction relief for an abuse of
discretion. Pearson v. State, 891 N.W.2d 590, 596 (Minn. 2017). A postconviction court
abuses its discretion if it acts arbitrarily or capriciously, bases its decision on an erroneous
legal interpretation, or makes clearly erroneous factual findings. Id . Because there are
different first-degree burglary subdivisions describing different ways to commit a burglary,
and because appellant was not convicted under the dangerous-weapon burglary
subdivision, we conclude that appellant was eligible for a downward durational departure.
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The state charged appellant in 2016 with first-degree burglary under Minnesota
Statutes section 609.582, subdivision 1(a) (2016), which provides that someone who
enters a building without consent and with intent to commit a
crime, or enters a building without consent and commits a
crime while in the building . . . commits burglary in the first
degree . . . if: (a) the building is a dwelling and another person,
not an accomplice, is present in it when the burglar enters or at
any time while the burglar is in the building.

Subdivision 1(a) does not involve possessing a dangerous weapon during the burglary. Id.
Subdivision 1(b), on the other hand, does. See id., subd. 1(b) (2016) (“the burglar possesses,
when entering or at any time while in the building, any of the following: a dangerous
weapon. . . . ”). Appellant’s conviction of first-degree burglary under the subdivision that
does not involve weapons poses no burden to the district court to exercise its discretion by
granting a downward durational departure on his subsequent ineligible-possession-of -
ammunition conviction.
A defendant who ineligibly possesses a firearm or ammunition after being convicted
of a burglary generally faces a minimum sentence of five years. Minn. Stat. § 609.11, subd.
5(a)-(b) (2020); see also id., subd. 9 (2020) (listing burglary as a crime generally requiring
a mandatory minimum sentence). A judge may, however, sentence a defendant without
regard to a mandatory minimum sentence unless “the defendant previously has been
convicted of [a burglary] in which the defendant used or possessed a firearm or other
dangerous weapon.” Minn. Stat. §609.11, subd. 8(b) (2020); see also id., subd. 9. Appellant
was not convicted of a subdivision 1(b) burglary, in which he “possess[ed] . . . a dangerous
weapon.” Minn. Stat. § 609.582, subd. 1(b). He was convicted of a burglary under
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subdivision 1(a), in which he entered an occupied dwelling. Id., subd. 1(a). Because
appellant was not convicted under the first- degree-burglary subdivision that references
using a dangerous weapon, his trial counsel appropriately advised him that he could seek a
downward durational departure on his subsequent ineligible-ammunition-possession
conviction.
Appellant contends that, because the statement of probable cause for his 2017
burglary charge notes he carried a box-cutter,1 his first-degree burglary conviction involved
a dangerous weapon and rendered him ineligible of receiving a downward durational
departure. But appellant’s 2017 burglary involved two dates, August 12 and August 14.
Appellant possessed a box-cutter on August 14 when police apprehended him before he
entered the same dwelling he had successfully entered on August 12. Appellant’s conduct
on August 14 does not qualify as burglary under Minnesota Statutes section 609.582,
subdivision 1(b), which requires that “the burglar possesses, when entering or at any time
while in the building . . . a dangerous weapon.” (Emphasis added.) Appellant did not enter
the dwelling on August 14 when he carried the box-cutter. Nor does appellant’s conduct
on August 12 satisfy subdivision 1(b) because police did not apprehend him on that date
when he successfully entered the dwelling and therefore had no evidence on whether he
possessed a dangerous weapon when he entered or was in the dwelling. Indeed, appellant
was charged and convicted under the person -present subdivision 1(a) for conduct that

1 A box-cutter qualifies as a dangerous weapon. See Minn. Stat. 609.02, subd. 6 (2020)
(defining “dangerous weapon” as “any device designed as a weapon and capable of
producing death or great bodily harm”).
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occurred on August 12, not the dangerous-weapon subdivision or for conduct occurring on
August 14. The postconviction court appropriately denied appellant’s postconviction
petition because it correctly concluded that it did have discretion to grant him a downward
durational departure. Appellant’s ineffective-assistance-of-trial claim was premised on his
interpretation of Minnesota Statutes section 609.11, subdivisions 8(b) and 9. Accordingly,
we affirm.
Affirmed.