State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by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
A22-0551

State of Minnesota,
Respondent,

vs.

Davonte Michael Robinson,
Appellant.

Filed January 3, 2023
Affirmed in part, reversed in part, and remanded
Larson, Judge

Hennepin County District Court
File Nos. 27-CR-18-29637; 27-CR-19-15455

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

Michael O. Freeman, Hennepin County Attorney, Pe ter R. Marker, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief A ppellate Public Defender, Abigail H. Rankin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Gaïtas, Judge; and Larson,
Judge.
NONPRECEDENTIAL OPINION
LARSON, Judge
This is an appeal from the district court ’s probation-revocation decision in two
cases. Appellant Davonte Michael Robinson argues the district court : (1) abused its
discretion when it decided that the need for confinement outweighed the policies favoring
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probation; (2) must resentence Robinson pursuant to the amelioration doctrine for his first-
degree-assault conviction because his criminal-history score erroneously include d an extra
custody-status point; and (3) must correct the warrant of commitment to vacate the third-
degree-assault conviction be cause it is a lesser -included offense of first -degree assault.
Because the district court must resentence Robinson pursuant to the amelioration doctrine
and correct the warrant of commitment, but the district court did not abuse its discretion
when it revoked Robinson’s probation, we affirm in part, reverse in part, and remand.
FACTS
On or about November 1, 2018, Robinson punched a man in the head, resulting in
the victim falling backwards and hitting his head on the pavement. Robinson admitted his
conduct caused the victim serious brain damage. About a month later, on or about
December 2, 2018, Robinson committed an unrelated carjacking.
On December 26, 2018, respondent State of Minnesota filed an amended complaint
charging Robinson with one -count of first-degree assault and one -count of third -degree
assault for the November 2018 incident . Robinson entered a straight plea 1 on June 27,
2018 (the assault conviction) . Before sentencing on the assault conviction, the state
charged Robinson with one -count of first-degree aggravated robbery for the December
2018 carjacking.
The district court sentenced Robinson for the assault conviction on October 16,
2019. The district court calculated Robinson’s presumptive sentence for the assault

1 A straight plea occurs when a defendant pleads guilty without entering a plea agreement
with the state. See State v. Ellis-Strong, 899 N.W.2d 531, 534 (Minn. App. 2017).
3
conviction under the 2018 Minnesota Sentencing Guidelines , assigning him one custody-
status point because the assault occurred within the original probationary term of a 2016
offense.2 The district court sentenced Robinson to 122 months in prison, a presumptive
sentence for a severity -level-nine offense with a criminal -history score of three. 3 Minn.
Sent’g Guidelines 4.A (2018). The district court then imposed a downward -dispositional
departure, staying execution of Robinson’s sentence and placing him on probation for five
years. To support its decision, the district court acknowledged the significant harm the
victim suffere d and the pending first-degree robbery charge, but chose to, in the district
court’s words, “take a huge chance” on Robinson. The district court found Robinson
particularly amenable to probation because he: participated in presentencing rehabilitative
programs; had a supportive community; took responsibility for his actions; and consistently
expressed remorse. Robinson’s probation conditions prohibited Robinson from possessing
firearms or ammunition and required him to follow all state and federal criminal laws.
On June 30, 2021, Robinson entered a plea agreement with the state and pleaded
guilty to aiding and abetting aggravated robbery for the December 2018 carjacking
(robbery conviction). On August 19, 2021, upon the parties’ agreement and in recognition
that Robinson had complied with the terms of probation for the assault conviction, the
district court imposed another downward -dispositional departure and sentenced Robinson

2 The 2016 offense is not otherwise at issue in this appeal.
3 Although the district court accepted only Robinson’s plea to first-degree assault and
sentenced him for that offense alone, the warrant of commitment reflects convictio ns for
both first- and third-degree assault. We address this infra at Part III.
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to an 88-month stayed prison term, with five years of probation and no additional time to
serve for the robbery conviction. 4
Robinson’s probation officer filed a violation report on November 3, 2021, stating
that Minneapolis police arrested Robinson after monitoring his social media. According
to the report, Robinson posted three videos depicting Robinson holding a semi-automatic
handgun. The videos showed Robinson possessing a handgun equipped with an extended
magazine and one video showed Robinson brandishing a handgun toward the camera. The
report also stated that police took Robinson into custody at a traffic stop and that Robinson
admitted he had a handgun at his residence. Police found a handgun in Robinson’s
residence when they executed a search warrant.
The district court held a contested revocation hearing pursuant to Minn. R. Crim.
P. 27.04, subd. 3, on December 9, 2021. At the revocation hearing’s conclusion, the district
court declined to rule from the bench to avoid “react[ing] out of . . . disappointment.” On
January 20, 2022, the district court held a hearing to decide the disposition. There, the
district court revoked Robinson’s probation, finding the state had proven Robinson’s
probation violations at the contested revocation hearing and that the severity of the
underlying offenses together with the probation violations indicated that Robinson posed a
risk to public safety, and that there were no appropriate alternatives to confinement.
The district court issued a written revocation order reflecting its reasoning on March
21, 2022. This order revoked Robinson’s probation for both the assault and robbery

4 The district court did not revoke probation because the carjacking took place prior to
sentencing for the assault conviction.
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convictions, executed the 122-month sentence for the assault, and executed the 88-month
sentence for the robbery to be served concurrently with the assault sentence, and credited
him 266 days fo r time served. The district court found that: (1) Robinson violated the
probation conditions prohibiting him from possessing firearms and ammunition and
requiring him to comply with all state and federal criminal laws ; (2) Robinson’s violations
were intentional and inexcusable; and (3) public policy favored confinement rather than
probation.
Regarding the district court’s findings related to policies favoring probation, t he
district court noted Robinson’s probation successes, family and support network, a nd his
probation agent’s surprise when she learned of his probation violations. The district court
also acknowledged Robinson’s defense that he was not, in fact, a dangerous person but
simply trying to outwardly project “an image others expected of him.” Nevertheless, the
district court found public policy favored revocation. The district court found that
Robinson had been convicted for violent crimes, one for “the most serious assault in
Minnesota law.” The district court noted that Robinson’s offenses and t he parole
violation—possession of a gun and ammunition—all carry prison commitment as their
presumptive disposition. The district court concluded that Robinson’s “desire to portray
himself as a man who has access to and parties wi th a gun with an extended magazine
shows he is a danger to public safety.” The district court concluded its public -safety
analysis by citing the sentencing guidelines for the proposition that “less judicial tolerance
is urged for offenders who were convic ted of a more severe offense.” Minn. Sent’g
Guidelines 3.B (2018).
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Robinson appeals.
DECISION
Robinson argues the district court: (1) abused its discretion when it decided that the
need for confinement outweighed the policies favoring probation; (2) m ust resentence
Robinson pursuant to the amelioration doctrine for his first -degree-assault conviction
because his criminal-history score erroneously include d an extra custody-status point; and
(3) must correct his warrant of commitment to vacate the third -degree-assault conviction
because it is a lesser -included offense of first -degree assault. We address each argument
in turn.
I.
Robinson first argues that the district court abused its discretion when it revoked his
probation. “The [district] court has broad discretion in determining if there is sufficient
evidence to revoke probation and should be reversed only if there is a clear abuse of
discretion.” State v. Austin, 295 N.W.2d 246, 249- 50 (Minn. 1980). However, we review
whether the district court made the required findings to revoke probation de novo. State v.
Modtland, 695 N.W.2d 602, 605 (Minn. 2005).
A district court analyzes three factors before it revokes probat ion (Austin factors).
Id. at 606. The district court should: (1) “designate the specific [probation] condition or
conditions that were violated”; (2) “find that the violation was intentional or inexcusable ”;
and (3) “find that the need for confinement outweighs the policies favoring probation.”
Austin, 295 N.W.2d at 250. “[I]n making . . . Austin findings, courts are not charged with
merely conforming to procedural requirements; rather, courts must seek to convey their
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substantive reasons for revocation and the evidence relied upon.” Modtland, 695 N.W.2d
at 608. Robinson only challenges the district court’s application of the third Austin factor.
Under the third Austin factor, the district court should consider three subfactors
(Modtland subfactors). The district court should evaluate whether : (1) confinement is
needed to “protect the public from further criminal activity”; (2) the offender needs
correctional treatment “which can most effectively be provided ” during confinement; and
(3) “it would unduly depreciate the seriousness of the violation if probation were not
revoked.” Id. at 607 (quotation omitted). Robinson argues the district court abused its
discretion in its application of the first and second Modtland subfactors.
Regarding the first Modtland subfactor, Robinson challenges the district court’s
public-safety finding, highlighting his successes on probation and the lack of evidence that
Robinson is dangerous . Robinson argues the district court misapplied the law when it
relied on the sentencing guidelines to weigh the downward -dispositional departures he
received for his crimes. See Minn. Sent’g Guidelines 3.B. 5 Robinson claims the district
court relied on the sentencing guidelines for the proposition that they “urge revocation for
probationers who violate their terms of supervision after receiving a [dispositional]
departure.”
The record belies Robinson’s arguments. The district court appropriately
considered that the sentencing guidelines urge judicial restraint in revoking probation when

5 Robinson acknowledges that the district cour t was free to consider his downward -
dispositional departures as a factor in deciding whether to revoke probation, e.g., State v.
Fleming, 869 N.W.2d 319, 331 (Minn. App. 2015), but contests the way the district court
weighed the evidence.
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an offender committed a “low severity level offense [,]” but that “[l]ess judicial tolerance
is urged for offenders who were convicted of a more severe offense .” Minn. Sent’g
Guidelines 3.B. Robinson’s convictions were for serious felonies. The district court made
this specific finding at the hearing and in its written order . The district court did not err
when it followed the sentencing guidelines and weighed the severity of Robinson’s
offenses when evaluating the first Modtland subfactor. See State v. Osborne, 732 N.W.2d
249, 254 (Minn. 2007) (concluding a defendant is entitled to “less judicial forbearance” for
“severe” offenses).
Further, the district court articulated its substantive reasons and the evidence it relied
on for its evaluation of the first Modtland subfactor. The district court found that
Robinson’s convictions were for serious , violent offenses. This, coupled with the nature
of the probation violation, indicated that Robinson posed a risk to public safety.
Furthermore, the revocation hearing transcript shows the district court considered other
public-safety risks Robinson’s conduct posed, such as concern for the safety of his child.6
The district court did not abuse its discretion when it weighed the first Modtland subfactor.
Turning to the second Modtland subfactor, Robinson contends the district court had
several alternatives to revocation and argues that the district court’s finding that there was
no appropriate alternative sanction was against logic and the facts in the record. We
disagree with Robinson’s description of the record. Consistent w ith the testimony of

6 In describing how Robinson “violated important conditions of [his] probation” the district
court said, “I hear you that it’s your girlfriend’s gun, but she was there when I told you you
can never have guns twice, and so there shouldn’t have been a gun in the bottom drawer
where your toddler can get to in your closet . . . .”
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Robinson’s parole officer, the district court found that “there is no treatment response
available to address the issues underlying [Robinson’s] behavior. [Robinson] has
completed multiple treatments and knows how to comply with probation and the laws. He
chose not to obey the laws related to firearms.” In short, the record shows that Robinson
participated in multiple successful treatment programs and still violated the terms of
probation. The district court did not abuse its discretion in weighing the second Modtland
subfactor.
The district court carefully considered the Modtland subfactors and we discern no
abuse of discretion in its analysis. We, therefore, aff irm the district court’s decision to
revoke Robinson’s probation.
II.
The parties agree that the district court must resentence Robinson for his first -
degree-assault conviction pursuant to State v. Robinette , 964 N.W.2d 143, 151 (Minn.
2021). We review the application of the sentencing guidelines de novo. State v. Scovel ,
916 N.W.2d 550, 554 (Minn. 2018).
A sentence based on an incorrect criminal -history score is an illegal sentence that
may be corrected at any time under Minn. R. Crim. P. 27.03, subd . 9. State v. Maurstad,
733 N.W.2d 141, 147 (Minn. 2007). For this reason, defendants do not forfeit review of
an incorrect criminal -history score, id. at 148, including when a district court stays a
sentence and the defendant challenges the sentence for the first time after revocation. State
v. Fields, 416 N.W.2d 734, 736 (Minn. 1987) . When a district court errs in calculating a
defendant’s criminal-history score, we reverse and remand for resentencing , even if the
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original sentence imposed was within the same range. State v. Stewart, 923 N.W.2d 668,
679 (Minn. App. 2019) (reversing and remanding for resentencing with instructions to use
a criminal-history score of one), rev. denied (Minn. Apr. 16, 2019).
The 2018 sentencing guidelines assigned one custody- status point to a criminal -
history score if the “offender [was] discharged from probation but commit [ed] an offense
within the initial period of probation pronounced by the court.” Minn. Sent’g Guidelines
2.B.2.a(4) (2018). The 2019 sentencing guidelines removed this provision. Minn. Sent’g
Guidelines 2.B.2.a (Supp. 2019); Robinette, 964 N.W.2d at 145. In Robinette, the supreme
court held that the amelioration doctrine applied to this modification and that the 2019
sentencing guidelines, effective August 1, 2019, determine the criminal-history score in
cases for which final judgment was not entered when the modification took effect .
Robinette, 964 N.W.2d at 145, 151.
Robinson committed the assault in November 2018, but the district court sentenced
Robinson in October 2019—after August 1, 2019. Despite this, the district court applied
the 2018 sentenc ing guidelines and included one custody-status point because Robinson
committed the assault within the original probationary term for a 2016 offense. Using this
custody-status point , t he district court sentenced Robinson to 122 months in prison, a
sentence within the presumptive range for a severity-level-nine offense with a criminal -
history score of three. Minn. Sent’g Guidelines 4.A (2018) (providing a presumptive range
of 104 to 146 months on a criminal-history score of three for a severity-level-nine offense) .
Had the district cour t applied the 2019 sentencing guidelines, this custody- status point
would have been omitted , changing the sentencing- guideline calculation to a severity -
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level-nine offense and a criminal-history score of two, for a presumptive range of 94 to 132
months in prison. Minn. Sent’g Guidelines 4.A (2019).
Accordingly, w e reverse and remand with instructions for the district court to
resentence Robinson for his first-degree-assault conviction with the correct criminal -
history score of two. Stewart, 923 N.W.2d at 680.
III.
The parties agree the district court must correct the warrant of commitment because
it erroneously includes a conviction for third -degree assault, which is a lesser -included
offense of first -degree assault . Minnesota law prohibits multiple convictions for lesser-
included offenses, defined as a “lesser degree of the same crime” or “a crime necessarily
proved if the crime charged were proved.” Minn. Stat. § 609.04, subd. 1 (2018). Whether
the entry of multiple convictions violates section 609.04 is a question of law that we review
de novo. State v. Bonkowske, 957 N.W.2d 437, 443 (Minn. App. 2021).
The proper procedure for district courts “ when the defendant is convicted on more
than one charge for the same act is for the [district] court to adjudicate formally and impose
sentence on one count only ,” retaining the guilty verdicts on remaining charges, but not
formally adjudicating th em. State v. LaTourelle , 343 N.W.2d 277, 284 (Minn. 1984)
(emphasis added) . “When [the] official judgment order states that a party has been
convicted of or se ntenced for more than one included offense,” we reverse and remand
with instructions to vacate the erroneous conviction. State v. Pflepsen, 590 N.W.2d 759,
767 (Minn. 1999); State v. Crockson, 854 N.W.2d 244, 248 (Minn. App. 2014), rev. denied
(Minn. Dec. 16, 2014).
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The record demonstrates that the district court followed the proper LaTourelle
procedure. Although Robinson entered a straight plea to both first-degree and third -degree
assault, the district court accepted only Robinson’s plea for the first-degree-assault count
and sentenced him for the same . Nevertheless, the disposition s et forth on the warrant of
commitment reflects convictions for both first - and third-degree assault.
We reverse and remand for the district court to vacate the conviction for third-degree
assault and to issue a new warrant of commitment consistent with this opinion. Pflepsen,
590 N.W.2d at 767. Consistent with LaTourelle, we instruct the district court to preserve
the underlying guilty plea. E.g., State v. Walker, 913 N.W.2d 463, 469 (Minn. App. 2018).
Affirmed in part, reversed in part, and remanded.