Danny Hamilton, 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This opinion is nonprecedential except as provided by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
A22-0562

Danny Hamilton, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed November 14, 2022
Affirmed
Cochran, Judge

Hennepin County District Court
File No. 27-CR-10-17596

Danny Hamilton, Faribault, 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 Cochran, Presiding Judge; Segal , Chief Judge; and
Hooten, Judge.
∗

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
COCHRAN, Judge
Appellant challenges the district court’s denial of his motion to correct his sentence,
arguing that his sentence is not authorized by law. Specifically, he contends that his
sentence is based on an incorrect criminal-history score and that the district court
improperly sentenced him to an upward durational departure. Because the district court
correctly calculated appellant’s criminal-history score at sentencing and did not impose an
upward durational departure, we conclude that the district court did not abuse its discretion
when it denied his motion to correct his sentence. We therefore affirm.
FACTS
In April 2010, respondent State of Minnesota charged appellant Danny Hamilton
with one count of first-degree criminal sexual conduct in violation of Minn. Stat.§ 609.342,
subd. 1(e)(i) (2008), and one count of first-degree aggravated robbery in violation of Minn.
Stat. § 609.245, subd. 1 (2008). The charges stemmed from allegations that Hamilton had
robbed and raped a woman in an alley in Minneapolis. A jury found Hamilton guilty on
both counts.
The district court sentenced Hamilton to 68 months’ imprisonment for aggravated
robbery and 172 months’ imprisonment for criminal sexual conduct, to be served
consecutively. The district court used a criminal-history score of two to calculate
Hamilton’s a ggravated-robbery sentence. For the criminal-sexual-conduct (CSC)
conviction, the district court used a criminal-history score of zero. The district court used
a score of zero because it was imposing consecutive sentences and had already sentenced
3
Hamilton on the aggravated-robbery conviction. See Minn. Sent ’g Guidelines II.F.2
(Supp. 2009).1 At the time the district court imposed the sentences, it noted: “This sentence
does not represent a durational or dispositional departure. Both sentences are well within
the box.”
Hamilton filed a direct appeal, challenging only his CSC conviction. He argued that
(1) he had been prosecuted twice in violation of the Double Jeopardy Clause; (2) the state’s
decision to strike the only African American member of the jury was racially motivated;
(3) the district court erroneously excluded relevant facts; and (4) the evidence was
insufficient to support a conviction. State v. Hamilton, No. A11-115, 2012 WL 5747, at
*1 (Minn. App. Jan. 3, 2012), rev. denied (Minn. Mar. 28, 2012). This court affirmed. Id.
In his direct appeal, Hamilton did not challenge his sentence. Id.
Since his direct appeal, Hamilton has filed three petitions for postconviction relief
followed by two motions to correct his sentence. The district court has denied each of
Hamilton’s petitions for postconviction relief as well as his motions to correct his
sentence.2 Hamilton’s second motion to correct his sentence, which was denied by an order
dated March 7, 2022, is the subject of this appeal.

1 Under the Minnesota Sentencing Guidelines, “[f]or each offense sentenced consecutive
to another offense(s), other than those that are presumptive, a zero criminal history score,
or the mandatory minimum for the offense, whichever is greater, shall be used in
determining the presumptive duration.” Minn. Sent’g Guidelines II.F.2.
2 Hamilton appealed the district court’s denial of his first petition for postconviction relief,
and this court affirmed. Hamilton v. State, No. A14-1457, 2015 WL 1281427, at *1 (Minn.
App. Mar. 23, 2015).
4
DECISION
Under Minn. R. Crim. P. 27.03, subd. 9, a district court “may at any time correct a
sentence not authorized by law.” “We review a district court’s denial of a motion to correct
a sentence under Minn. R. Crim. P. 27.03, subd. 9, for an abuse of discretion.”
Evans v. State, 880 N.W.2d 357, 359 (Minn. 2016). A district court abuses its di scretion
if it bases its ruling on an erroneous conclusion of law, makes a clearly erroneous factual
finding, or exercises its discretion in an arbitrary or capricious manner. Pearson v. State,
891 N.W.2d 590, 596 (Minn. 2017). We review legal conclusions de novo and factual
findings for clear error. Townsend v. State, 834 N.W.2d 736, 738 (Minn. 2013).
Hamilton argues that the district court abused its discretion by denying his motion
to correct his sentence because (1) his sentence is based on an incorrect criminal- history
score, and (2) the district court sentenced him to an upward durational departure in
violation of Blakely v. Washington, 542 U.S. 296, 303 (2004). We consider each argument
in turn.
I. The district court used the correct criminal-history score to sentence Hamilton.

Hamilton argues that his sentence is unlawful because the district court used the
incorrect criminal-history score for his aggravated-robbery conviction at sentencing. We
review a district court’s determination of a defendant’s criminal-history score for an abuse
of discretion. State v. Stillday, 646 N.W.2d 557, 561 (Minn. App. 2002), rev. denied
(Minn. Aug. 20, 2002). Moreover, a defendant who challenges his criminal-history score
after the time for a direct appeal has passed bears the burden of proving that his
5
criminal-history score was improperly calculated. Williams v. State, 910 N.W.2d 736, 743
(Minn. 2018).
The Minnesota Senten cing Guidelines establish presumptive sentences for felony
offenses. Minn. Stat. § 244.09, subd. 5 (202 0). To determine a defendant’s presumptive
sentence, the district court calculates the defendant’s criminal-history score using the
defendant’s prior convictions and then cross-references that score with the convicted
offense. Minn. Sent’g Guidelines II.C (Supp. 2009). From there, the district court may
consider whether grounds exist for a departure from the presumptive sentence. See Minn.
Sent’g Guidelines II.D (Supp. 2009). When calculating a defendant’s criminal -history
score, the district court must include previous felony convictions. Minn. Sent’g Guidelines
II.B.1 (Supp. 2009). But the district court may not include felony convictions that have
decayed. See Minn. Sent’g Guidelines II.B.1.f. A prior felony conviction has decayed if
“a period of fifteen years has elapsed since the date of discharge from or expiration of the
sentence, to the date of the current offense.” Id.; see State v. Washington, 894 N.W.2d 168,
172 (Minn. App. 2017), aff’d, 908 N.W.2d 601 (Minn. 2018).
Hamilton argues that the district court improperly included a decayed felony
conviction when it calculated his criminal-history score for aggravated robbery. Hamilton
contends that this error inflated his score from one and one-half points (which would have
rounded down to one) to two points. See Minn. Sent’g Guidelines II.B.1 (“The felony point
total is the sum of [the weights assigned to each prior felony sentence]; no partial points
are given.”); Minn. Sent’g Guidelines cmt. II.B.101 (Supp. 2009) (“No partial points are
6
given—thus, a person with less than a full point is not given that point.”); Minn. Sent’g
Guidelines V (Supp. 2009) (offense severity reference table). We are not persuaded.
The record reflects that the district court correctly assigned Hamilton a
criminal-history score of two when sentencing Hamilton for aggravated robbery.
Hamilton’s presentence-investigation report shows that Hamilton had two prior felony
convictions that had not decayed as of the date of Hamilton’s offenses in this matter. The
combined criminal-history score for these two convictions gave Hamilton a
criminal-history score of two at the time of sentencing.
The first prior felony conviction was a conviction of unlawful possession of a
firearm—a level-six offense weighted at one and one-half points under the sentencing
guidelines in effect at the time Hamilton was sentenced. See Minn. Sent’g Guidelines
II.B.1, V. Hamilton was sentenced for this crime on September 11, 1996, and he committed
the offenses in this case on April 17, 2010. The time between these dates is less than
15 years. Thus, this conviction had not decayed by the time Hamilton was sentenced, and
it was properly included in the calculation of Hamilton’s criminal-history score.
The second prior felony conviction was a conviction of fifth-degree possession of a
controlled substance 3—a level -two offense weighted at one-half of a point under the

3 Hamilton appears to argue that this conviction should not have been included in his
criminal-history score because it was “dismissed.” To support his argument, Hamilton
cites a December 27, 2000 charge for fifth-degree possession of a controlled substance in
district court file number 27-CR-00 -121340, which was dismissed on January 25, 2001.
Hamilton appears to conflate this dismissed charge with his felony conviction of
fifth-degree possession of a controlled substance in district court file number 27- CR-95-
109708, which was properly included in his criminal-history score. Thus, this argument
7
sentencing guidelines in effect at the time Hamilton was sentenced. See id. Hamilton was
sentenced for this crime on February 21, 1996, fewer than 15 years before Hamilton
committed the offenses in this case. Thus, this conviction also had not decayed by the time
Hamilton was sentenced, and it was properly included in Hamilton’s criminal-history
score.
Based on these previous convictions, the district court correctly assigned Hamilton
a criminal-history score of two when sentencing him for aggravated-robbery. 4
Accordingly, the district court did not abuse its discretion in denying Hamilton’s motion
to correct his sentence based on his challenge to the calculation of his criminal- history
score.
II. The district court did not sentence Hamilton to an upward durational
departure and therefore could not have violated Blakely.

Hamilton also argues that the district court abused its discretion by denying his
motion to correct his sentence because each sentence amounted to an upward durational
departure imposed in violation of Blakely. 524 U.S. at 303. This argument misses the
mark because the district court did not sentence Hamilton to an upward durational
departure for either of his two convictions.
We begin our analysis of this argument by providing some additional background
on presumptive sentences and departures under the Minnesota Sentencing Guidelines. As

fails, and the district court properly used a criminal-history score of two when sentencing
Hamilton for aggravated robbery.
4 Hamilton does not challenge the assignment of a criminal-history score of zero for the
CSC conviction.
8
discussed above, the sentencing guidelines establish a presumptive sentence for each
felony offense. Minn. Stat. § 244.09, subd. 5(2); Minn. Sent’g Guidelines II.C. In addition
to the presumptive sentence, the sentencing guidelines also prescribe a sentencing range
“within which a judge may sentence without the sentence being deemed a departure.”
Minn. Sent’g Guidelines IV (Supp. 2009) (emphasis added). For example, aggravated
robbery with a criminal-history score of two carries a presumptive sentence of 68 months’
imprisonment and has a permissive sentencing range of 58-81 months’ imprisonment. Id.
“All three numbers in any given cell [on the sentencing guidelines grid] constitute an
acceptable sentence based solely on the offense at issue and the offender’s criminal history
score—the lowest is not a downward departure, nor is the highest an upward departure.”
State v. Jackson, 749 N.W.2d 353, 359 n.2 (Minn. 2008). In other words, any sentence
within the permissive sentencing range is not a departure. Id.
The sentencing guidelines also provide a nonexclusive list of aggravating factors
that may support an upward durational sentencing departure. Minn. Sent ’g Guidelines
II.D.2.b; see also Minn. Stat. § 244.10, subd. 5a(a) (Supp. 2009) (identifying the same
aggravating factors) . Under the United States Supreme Court’s decision in Blakely , a
criminal defendant has a constitutional right to a jury finding of aggravating circumstances
that would support an upward departure from the defendant’s presumptive sentence, unless
the defendant waives this right. State v. Jones, 745 N.W.2d 845, 848, 851 (Minn. 2008)
(citing Blakely, 524 U.S. at 303).
Hamilton argues that the district court’s sentence for each of his convictions
constitutes an upward departure because the sentence for each of his convictions exceeds
9
the presumptive sentence.5 Hamilton appears to contend that any sentence other than the
presumptive sentence —even a sentence within the permissive sentencing range—
constitutes a departure from the sentencing guidelines that must be submitted to a jury
unless the defendant waives his Blakely rights. For example, Hamilton argues that the
district court departed upward when it sentenced him to 172 months for criminal sexual
conduct and 68 months for aggravated robbery, even though both sentences were within
the permissive sentencing ranges based on Hamilton’s criminal- history scores. This
argument is based on a misunderstanding of the sentencing guidelines.
As the district court correctly concluded, Hamilton’s sentences for first-degree
aggravated robbery and first-degree criminal sexual conduct are not upward departures
subject to Blakely. Under the sentencing guidelines that were in effect at the time Hamilton
committed his offenses, the permissive sentencing range for first -degree aggravated
robbery with a criminal-history score of two was 58-81 months, and the permissive
sentencing range for first-degree criminal sexual conduct with a criminal-history score of
zero was 144-172 months. Minn. Sent’g Guidelines IV. The district court sentenced
Hamilton to 68 months for aggravated robbery and 172 months for criminal sexual

5 Hamilton does not appear to be challenging the consecutive nature of his sentences. To
the extent that Hamilton does challenge the consecutive nature of his sentence s, this
challenge fails. The sentencing guidelines that were in effect at the time Hamilton
committed his offenses allowed district courts to impose consecutive sentences for multiple
current felony convictions of certain crimes without those sentences being considered a
departure. Minn. Sent’g Guidelines II.F.2.a , VI (Supp. 2009). First-degree aggravated
robbery and first-degree criminal sexual conduct were among those crimes. Minn. Sent’g
Guidelines VI. Thus, the district court had the discretion to consecutively sentence
Hamilton for these crimes.
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conduct—both of which are within the permissive sentencing ranges for the applicable
criminal-history scores. Thus, Hamilton’s sentences are each within the sentencing range
“within which a judge may sentence without the sentence being deemed a departure.”
Minn. Sent’g Guidelines IV (emphasis added); see also, Jackson, 749 N.W.2d at 359 n.2.
Accordingly, nothing in the record suggests that the district court sentenced Hamilton to
an upward departure, and the district court did not abuse its discretion in imposing the
sentences that it did. See Minn. Sent’g Guidelines IV.
In sum, the district court acted well within its discretion when it denied Hamilton’s
second motion to correct his sentence.
Affirmed.