Lannon Lavar Burdunice, 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This opinion is nonprecedential except as provided by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
A21-0888

Lannon Lavar Burdunice, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed May 2, 2022
Affirmed
Ross, Judge

Hennepin County District Court
File No. 27-CR-16-19342

Lannon Lavar Burdunice, Bayport, Minnesota (pro se 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 Ross, Presid ing Judge; Worke, Judge; and Larkin,
Judge.
NONPRECEDENTIAL OPINION
ROSS, Judge
Lannon Burdunice shot and killed a man over illegal dr ugs. The district court
convicted Burdunice of murder and unlawfully possessing a firearm, and it sentenced him
to 40 years in prison. Burdunice unsuccessfully appealed his conviction and unsuccessfully
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petitioned the district court fo r postconviction relief. He cha llenges the district court’s
postconviction decision on multiple theories, none convincing. We therefore affirm.
FACTS
Lannon Burdunice shot and killed a man in July 2016 after arguing over a small
amount of marijuana. A jury found him gui lty of second-degree murder and possessing a
firearm as an ineligible person. Minn. Stat . §§ 609.19, subd. 1(1), 624.713, subd. 1(2)
(2014). The district court sentenced Burdunice under the mandatory minimum term of five
years in prison for the firearm offense. Minn. Stat. § 609.11, subd. 5(b) (2014). Using the
Hernandez method to calculate Burdun ice’s criminal-history score, it imposed a 40-year
prison term for the murder offense, the statutory maximum.
Burdunice appealed, and we rejected his various challenges to his conviction and
sentence. State v. Burdunice, No. A18-1269, 2019 WL 3000714, at *1 (Minn. App. July 8,
2019), rev. denied (Minn. Sept. 17, 2019). He then filed a “motion for correction
modification/reduction of sentence pursuant to Minn. R. Crim. P. 27.03, subd. 9,” arguing
that his sentences were unlawful. The distri ct court converted his motion to a petition for
postconviction relief under Minnesota Statutes sections 590.01–.11 (2020), and it denied
the petition.
Burdunice appeals that decision.
DECISION
Burdunice challenges the district c ourt’s decision denying his petition for
postconviction relief. We first address the district court’s decision to treat Burdunice’s rule
27 “sentencing” motion as a petition for postconviction relief. A rule 27 motion attacks “a
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sentence not authorized by law.” Minn. R. Crim . P. 27.03, subd. 9. But when resolving a
motion captioned as a sentence challenge also implicates an underlying conviction, the
district court should treat it as a petition for postconviction relief. State v. Coles ,
862 N.W.2d 477, 480 (Minn. 2015). The appr opriate standard of review is “an open
question,” but we review the distri ct court’s decision here de novo. Bolstad v. State ,
966 N.W.2d 239, 242–43 (Minn. 2021). Burdunice argued that the charge of illegal-firearm
possession is an “included offense” and that his conviction for that offense should not have
been sentenced, citing Minnesota Statutes s ection 609.04 (2014). Under that statute, a
defendant “may be convicted of either the crime charged or an included offense, but not
both.” Minn. Stat. § 609.04, subd. 1. By aski ng the district court to reverse his sentence
under that statute, Burdunice implicated hi s conviction. The district court therefore
properly treated his rule 27 motion as a postconviction petition. The state did not raise and
the district court did not address whether Burdunice’s postconviction claims are barred by
State v. Knaffla, 243 N.W.2d 737, 741 (Minn. 1976). We therefore also will not consider
Knaffla and instead address the appeal on the merits.
We reject Burdunice’s ar gument that his conviction and sentence violate the
“included offense” restriction in section 609.04. Whether an offense is an included offense
is a question of law we review de novo. State v. Degroot , 946 N.W.2d 354, 364 (Minn.
2020). Burdunice argues that, by proving that he committed the murder using a gun, the
state also proved that he illegally possessed th e gun, making the gun offense an included
offense. The argument overlooks the fact that, to determine whether one offense is included
in another, we compare the elements of the o ffenses, not the circumstances of the crimes.
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State v. Coleman, 373 N.W.2d 777, 780–81 (Minn. 1985). None of the elements of the two
offenses overlap. The murder charge required the state to prove that Burdunice “cause[d]
the death of a human being with intent to e ffect the death of that person or another, but
without premeditation,” Minn. Stat. § 609.19, subd. 1(1), while the firearm offense
required the state to prove that he was ineligible to possess a firearm and did so knowingly,
Minn. Stat. § 624.713, subd. 1 (2014). Under these elements, proof that a defendant
committed second-degree murder does not necessarily prove that he committed the firearm
offense.
We are also unpersuaded by Burdunice’s reliance on Minnesota Statutes section
609.035 (2014). That statut e generally prohibits punish ing a defendant for multiple
offenses when they arose from a single behavioral incident. Minn. Stat. § 609.035. But a
firearms exception to the single-behavioral-inc ident rule applies to “a prosecution for or
conviction of a violation of section . . . 624. 713, subdivision 1, clau se (2),” and does not
prevent multiple sentences arising from the incident. Id., subd. 3. Burd unice’s multiple
sentences for murder and the firearm conviction do not violate the statute.
Burdunice next argues unconvincingly that the district court’s application of State
v. Hernandez, 311 N.W.2d 478 (Minn. 1981), violates statutory and constitutional law. The
Hernandez court rejected a similar challenge and allowed the district court to sentence a
defendant for two or more offenses in one hearing by applying each preceding conviction
to calculate the defendant’s criminal-history score for each succeeding offense. Hernandez,
311 N.W.2d at 480–81; see also Minn. Sent. Guidelines 2.B.1.e (2015). This approach
applies to illegal-firearm convictions. State v. Williams, 771 N.W.2d 514, 522–24 (Minn.
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2009) (concluding sentenci ng guidelines do not prohibit application of Hernandez to
multiple convictions and sentences under fe lon-in-possession ex ception to section
609.035). And Burdunice’s Hernandez sentences are consistent with his right to a jury trial
under the Sixth Amendment. Although a defenda nt is entitled to a jury determination of
any facts that may enhance his sentence, Blakely v. Washington, 542 U.S. 296, 301 (2004),
this right does not appl y to prior convictions, Apprendi v. New Jersey , 530 U.S. 466,
488–89 (2000). Burdunice’s guilt resulted from a jury decision. We reject his statutory and
constitutional arguments under Hernandez.
Burdunice has not shown that his 40-year sentence for seco nd-degree murder
resulted from an incorrect criminal-history score. He bears the burden of establishing that
the district court imposed an unlawful sentence. Williams v. State, 910 N.W.2d 736, 742
(Minn. 2018). We review the district court’s criminal-history calculation for an abuse of
discretion. State v. Edwards, 900 N.W.2d 722, 727 (Minn. App. 2017), aff’d, 909 N.W.2d
594 (Minn. 2018). The parties believed during sentencing that Burdunice’s
criminal-history score included five and one-hal f felony points and that the district court
must round downward to five. See Minn. Sent. Guidelines, cmt. 2.B.102 (Supp. 2015). The
prosecutor relied on a score of fi ve when urging the district court to impose a sentence at
the top of the presumptive range of 346 to 480 months. The presentence investigation report
instead presumed a score of six and indicated that the presumptive range was therefore 363
to 480 months. This result seems to be correct by our calculation. The parties appear to be
rounding down twice in stead of calculating the felony poi nts and rounding down only if
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there is a partial point. But we need not discuss the disagreement further for the following
reasons.
The district court adopted the state’s argument that Burdunice ought to be sentenced
at the top of the presumptive range. In doing so, it did not specify whether it was following
the prosecutor’s understanding (of a criminal-history score of five) or the probation office’s
understanding (of a score of six). But the top of the presumptive sentencing range in this
case is the same under either criminal-history score. Be cause the 480-month prison
sentence falls within that range under either score, Burdunice has not met his burden of
establishing that the district court imposed an unlawful sentence even if his claim of error
is correct. Remanding for the district court to identify the applied score would change
nothing. In any event, we hold that the district court did not abuse its discretion.
Burdunice forwards other arguments warra nting little discussion. We see no merit
to his contention that the sentencing guidelines are unconstitutional under United States v.
Booker, 543 U.S. 220, 233–34 (2 005), which held that the federal sentencing guidelines
are not mandatory unless the sentencing facts are found by a jury. Unlike the circumstances
in Booker, the only facts that the district court relied on to enhance Burdunice’s sentence
were his prior convictions, which may serve as the basis for mandatory enhancements
without violating the right to a jury. And be cause a district court need not explain its
reasons for imposing a presumptive sentence, State v. Johnson , 831 N.W.2d 917, 925
(Minn. App. 2013), we similarly see no merit in Burdunice’s contenti on that the district
court abused its discretion by ignoring arguments he made at sentencing.
Affirmed.