Marlow Shelton McDonald, petitioner, Appellant,

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This opinion is nonprecedential except as provided by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
A21-0361

Marlow Shelton McDonald, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed November 29, 2021
Affirmed
Reyes, Judge

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

Zachary A. Longsdorf, Longsdorf Law Firm, P.L.C., Inver Grove Heights, Minnesota (for
appellant)

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

Patrick R. McDermott, Blue Earth County Attorney, Susan B. DeVos, Ass istant County
Attorney, Mankato, Minnesota (for respondent)

Considered and decided by Florey, Presiding Judge; Connolly, Judge; and Reyes,
Judge.
NONPRECEDENTIAL OPINION
REYES, Judge
Appellant challenges the postconviction court’s denial of his motion to correc t his
sentence under Minn. R. Crim. P. 27.03, subd. 9 , arguing that he should be resentenced
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using a criminal -history score of four instead of the previously used score of six. We
affirm.
FACTS
Following a jury trial in September 2014, appellant Marlow Shelton McDonald was
convicted of a first-, second-, and third-degree controlled-substance crime, fleeing a police
officer, unlawful possession of a firearm, and being a prohibited person in possession of a
firearm. During the sentencing p hase of the trial, the jury also found that appellant had
five or more prior felony convictions and that his current offenses were committed as part
of a pattern of criminal conduct.
Before appellant’s sentencing hearing, Blue Earth County calculated appe llant’s
criminal-history score at six based in part on the following felonies: one point for a 2004
falsely impersonating another conviction; one-half of a point for a 2004 aggravated-forgery
conviction; and one point for a 2002 Illinois burglary conviction. With a criminal-history
score of six, the first -degree controlled -substance conviction carried a presumptive
sentence of 158 months’ imprisonment. The district court granted a double upward
durational departure based on appellant’s career-offender status and sentenced appellant to
316 months’ imprisonment. Appellant filed a direct appeal asserting numerous claims but
did not challenge any of the felonies included in his criminal -history score. State v.
McDonald, No. A15-0268 (Minn. App. Feb. 16, 2016), rev. denied (Minn. Apr. 19, 2016).
This court rejected appellant’s claims and affirmed his conviction and sentence. Id.
In June 2017, appellant petitioned for postconviction relief and asked to be
resentenced under the newly enacted 2016 Minnesota Drug Sentencing Reform Act
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(DSRA). The state agreed, and the postconviction court amended his 316-month sentence
to a 250 -month sentence, relying on an updated sentencing worksheet that assigned the
same six criminal-history points as appellant had in his original 2014 sentencing worksheet.
Appellant also asserted various other claims but again did not challenge his criminal -
history-score calculation. Appellant’s other claims were deemed Knaffla-barred1 and
denied.
Appellant challenged the postconviction court’s application of the DSRA to his new
sentence on appeal but did not challenge the inclusion of any felonies in his criminal -
history score. McDonald v. State, No. A18-0064 (Minn. App. July 30, 2018). This court
rejected appellant’s arguments and affirmed the postconviction court’s amended sentence.
Id.
In December 2020, appellant brought a motion under Minn. R. Crim. P. 27.03,
subd. 9, to correct his sentence. Appellant moved to be resentenced using a criminal -
history score of three instead of six, arguing that: (1) he should not have been ass igned
separate points for his 200 4 aggravated-forgery, false -impersonation, and fifth -degree
controlled-substance convictions because they arose out of a single behavioral incident and
(2) his 2002 Illinois burglary conviction should not have been included because it would
not have been considered a felony in Minnesota . The postconviction court denied
appellant’s motion. This appeal follows.

1 See State v. Knaffla, 243 N.W.2d 737, 741 (Minn. 1976) (“[W]here direct appeal has once
been taken, all matters raised therein, and all claims known but not raised, will not be
considered upon a subsequent petition for postconviction relief.”).
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DECISION
We review the postconviction court’s denial of a rule 27.03, subd. 9 motion to
correct a sentence for an abuse of discretion. Townsend v. State , 834 N.W.2d 736, 738
(Minn. 2013). Specifically, we review the postconviction court’s legal conclusions de novo
and its factual findings for clear error. Id. When a defendant files a motion for resentencing
under rule 27.03, subd. 9, after the time for direct appeal has passed, the defendant bears
the burden of prov ing that his sentence is based on an incorrect criminal -history score.
Williams v. State, 910 N.W.2d 736, 742-43 (Minn. 2018). Placing the burden of proof on
defendants in postconviction, post-appeal rule 27.03, subd. 9 motions “incents defendants
to make timely objections at sentencing, which helps to ensure that the district court has all
of the relevant information before the [district] court is called upon to impose a sentence.”
Id. at 743.
I. The postconviction court did not abuse its discretion by determining that
appellant failed to meet his burden of proving that his convictions of
aggravated forgery and falsely impersonating another arose out of a single
behavioral incident.

Appellant first argues that the postconviction court abused its discretion when it
determined that appellant failed to show that his 2004 conviction of falsely impersonating
another should not have been included in his criminal-history score because his convictions

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of aggravated forgery and falsely impersonating another arose out of a single behavioral
incident.2 We do not agree.
Generally, “if a person’s conduct constitutes more than one offense under the laws
of [Minnesota], the person may be punished for only one of the offenses and a conviction
or acquittal of any one of them is a bar to prosecution for any other of them.” Minn. Stat.
§ 609.035, subd. 1 (2014). This prohibition against multiple punishment applies only if
the multiple offenses arose out of “a single behavioral incident.” State v. Bookwalter, 541
N.W.2d 290, 294 (Minn. 1995). If multiple offenses arose out of a single behavioral
incident, only the offense at the highest severity level should be considered in calculating
the criminal-history score. Minn. Sent. Guidelines cmt. 2.B.107 (2014).
When determining whether crimes are committed as part of a single be havioral
incident, courts consider whether there was (1) a single criminal objective and (2) a unity
of time and place. Bookwalter, 541 N.W.2d at 294. The application of the “single
behavioral incident” test depends heavily on the facts and circumstances of each case. State
v. Bauer, 792 N.W.2d 825, 828 (Minn. 2011).
Here, appellant pleaded guilty to aggravated forgery and falsely impersonating
another. To show that both offenses arose out of a single behavioral incident, appellant
provided a plea-hearing transcript that included details about the two offenses. According

2 In his origin al rule 27.03, subd. 9 motion, appellant argued that his 2004 fifth-degree
controlled-substance conviction also arose out of the same behavioral incident as his
forgery and false-impersonation convictions. But the postconviction court pointed out that
the fifth-degree controlled-substance offense occurred on April 4, 2004, while the forgery
and false-impersonation offenses occurred on January 10, 2003. Appellant accordingly
dropped his claim regarding the fifth-degree controlled substance conviction on appeal.
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to the transcript, appellant had been arrested on or around January 10, 2003. While going
through the booking process at the Blue Earth County jail, appellant signed a fingerprint
card with the name “Onassis Lloyd.” Appellant admitted that he had given the name of his
friend to avoid being arrested under his real name. As part of his guilty plea on the false -
impersonation charge, appellant also admitted to signing an Advice of Rights sheet on the
same day, January 10, 2003, with the same false name, Onassis Lloyd, at the Blue Earth
County courthouse. Later during that same plea hearing, the district court noted that
appellant’s attorney had made a motion claiming that the two charges , aggravated forgery
and falsely impersonating another, were a single course of conduct. Although the district
court stated that it had only deferred the motion and that the motion was still active, t he
motion appears to have been withdrawn at some point. The district court did not address
it when sentencing appellant for the forgery and false-impersonation offenses.
The postconviction court acknowledged that there was evidence in the record that
the forgery and the false -impersonation offenses occurred on the same day, January 10,
2003, and that there was evidence that appellant provided the same name during both
offenses. However, they occurred at different places : one offense occurred at the jail and
the other occurred at the courthouse . In addition, the postconviction court found no
evidence in the record regarding the sequence of events or how far apart in time the two
offenses occurred. Without that evidence, the postconviction court found that appellant
had failed to meet his burden of proving that the offenses arose out of a single behavioral
incident because they lacked a unity of time and place.
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Even assuming appellant provided enough evidence to show that he committed the
forgery and false -impersonation offenses with a single criminal objective, the
postconviction court did not abuse its discretion when it determined that appellant had not
shown that the two offenses were unified in time and place . Appellant acknowledges that
the two offen ses occurred at different locations but argues that the two offenses are
nevertheless unified in place because the state transported appellant between locations as
part of a single booking process. Appellant relies on Bixby v. State, 344 N.W.2d 390, 393
(Minn. 1984), in which the Minnesota Supreme Court held that a defendant’s two acts of
sexual intercourse that occurred at different places in one evening arose out of a single
behavioral incident because there had been “just one basic incident of wrongdoin g that
took place at two different locations in one evening.”
We do not agree that either Bixby or the case it relied upon, State v. Herberg, 324
N.W.2d 346 (Minn. 1982), controls the outcome here based on the unique facts and
circumstances of this case. Bixby and Herberg are sexual-assault cases involving the same
criminal act committed against the same victim in separate locations. Because the acts and
victims were identical, the supreme court did not find the change in location significant.
In this case, appellant provided the same name but in two different situations and to two
different parties: he first provided the false name to law-enforcement officers at the police
station while being fingerprinted, and he later provided that same false name on a statement
of rights submitted to the district court during his first appearance at the courthouse.
Moreover, in Bixby and Herberg, the supreme court took into account the fact that the
defendants’ underlying motivation remained the same even as they moved their victims to
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new locations. See Bixby, 344 N.W.2d at 393. Here, the record appellant relies on shows
that he gave the false name to police to avoid arrest but does not show why appellant later
gave the false name to the district court. Appellant’s case is therefore further
distinguishable from Bixby and Herberg because, on this record, we cannot say whether
appellant’s underlying motivation was the same at the two separate locations.
Appellant also failed to show that the offenses were unified in time. The “unity of
time” factor is a fact-specific analysis that requires more than just a general determination
that the offenses were committed on the same date. See State v. Stevenson, 286 N.W.2d
719, 720 (Minn. 1979) (concluding that two incidents of sexual contact with the victim five
hours apart were not part of single behavioral incident); State v. Schevchuk , 163 N.W.2d
772, 776 (Minn. 1968) (holding that several crimes wer e not part of single behavioral
incident when offenses occurred at clearly separate times over a period of two and one-half
hours); Bookwalter, 541 N.W.2d at 297 ( determining that sexual assault and attempted
murder that took place in single evening nevertheless occurred at distinct times). Without
a more specific showing of the time that passed between appellant’s forgery and false -
impersonation offenses, we cannot say that appellant’s offenses were unified in time. The
postconviction court therefore did not abuse its discretion when it found that appellant
failed to meet his burden of showing that the two offenses arose out of a single behavioral
incident.

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II. The postconviction court did not abuse its discretion by determining that
appellant failed to meet his burden of proving that his Illinois burglary
conviction should not have been included in his criminal-history score.

Appellant also argues that his 2002 Illinois burglary conviction should not have
been included in his criminal-history score, or, alternatively, that it should have been
assigned one-half of a criminal-history point rather than one point. We are not persuaded.
A defendant’s criminal-history score is determined by assigning a particular weight
to every c onviction for which a felony sentence was stayed or imposed. Minn. Sent.
Guidelines cmt. 2.B.101 (2014); see also State v. Williams , 771 N.W.2d 514, 521 (Minn.
2009). A prior out-of-state conviction may be counted as a felony if the offense would be
defined as a felony in Minnesota and the defendant received a felony-level sentence. Minn.
Sent. Guidelines 2.B.5.b (2014). To determine whether a defendant’s out -of-state
conviction should be included in a defendant’s criminal-history score, the sentencing court
should compare the definition of the out-of-state offense with the definitions of comparable
Minnesota offenses but may also consider the nature of the out -of-state offense and the
sentence the offender received. Hill v. State, 483 N.W.2d 57, 61 (Minn. 1992).
Appellant pleaded guilty to and was convicted of burglary in violation of 720 Ill.
Comp. Stat. 5/19-1 (West 2002) which states that “ [a] person commits a burglary when
without authority he or she knowingly enters or without authority remains w ithin a
building, housetrailer, watercraft, aircraft, motor vehicle, railroad car, or any part thereof,
with intent to commit therein a felony or theft.” The equivalent Minnesota burglary statute,
Minn. Stat. § 609.582, subd. 3 (2014), only prohibits a person from entering “a building
without consent and with intent to steal or commit any felony or gross misdemeanor while
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in the building . . . .” Appellant argues that his Illinois conviction would not have been
considered a felony in Minnesota because Minnesota’s equivalent burglary statute does not
prohibit entering or remaining within a housetrailer, watercraft, aircraft, motor vehicle, or
railroad car, and because the record is silent regarding the factual basis for appellant’s
burglary conviction.
The postconviction court correctly noted that appellant showing that the Illinois
burglary statute is broader than Minnesota’s equivalent statute does not, by itself, establish
that appellant’s conviction would not have been considered a felon y in Minnesota.
Appellant instead had the burden to show that his Illinois burglary conviction was based
on conduct that would not have fallen under Minnesota’s burglary statute: specifically,
appellant had to show that his conviction was based on appella nt entering or without
authority remaining within a housetrailer, watercraft, aircraft, motor vehicle, or railroad
car. But appellant provided no facts underlying the Illinois burglary conviction.
Alternatively, appellant argues that if the Illinois bur glary conviction is deemed
equivalent to a theft conviction under Minn. Stat. § 609.52, appellant should be ass igned
only one-half of a criminal-history point for an under-$5,000 theft offense because there is
nothing in the record indicating the value of the property involved. Appellant’s alternative
claim fails because , even if the postconviction court did deem the Illinois burglary
conviction to be equivalent to a Minnesota theft conviction, there is no evidence in the
record showing that appellant’s Il linois burglary conviction involved a loss of property
worth $5,000 or less, as would be required to reduce the points assigned for the burglary
conviction from one point to one-half of a point. The postconviction court therefore did
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not abuse its discret ion when it determined that appellant failed to meet his burden of
proving that his Illinois burglary conviction should not have been included in his criminal-
history score.
Affirmed.