Brandon Maurice Baker, 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This opinion is nonprecedential except as provided by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
A23-0958

Brandon Maurice Baker, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed January 29, 2024
Affirmed
Slieter, Judge

Ramsey County District Court
File No. 62-CR-19-8404

Cathryn Middlebrook, Chief Appellate Public Defender, Rebecca Ireland, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

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

John J. Choi, Ramsey County Attorney, Alexandra Meyer, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Considered and decided by Slieter, Presiding Judge; Cochran, Judge; and Larson,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
In this appeal from an order denying postconviction relief, appellant argues that the
postconviction court abused its discretion in denying his petition for two reasons: (1) the
sentencing court erred by assigning a severity level 9 to the offense of aiding an offender
2
after the fact and (2) the sentencing court erred by denying his motion for a downward
durational departure. Because the sentencing court acted within its discretion by assigning
a severity level 9 to the unranked offense and by denying a sentencing departure, we affirm
the postconviction court’s denial of appellant’s petition.
FACTS
Appellant Brandon Maurice Baker filed a petition for postconviction relief in district
court, seeking resentencing for his conviction of intentionally aiding an offender as an
accomplice after the fact in violation of Minn. Stat. § 609.495, subd. 3 (2018).
In October 2019, officers responded to multiple 911 calls reporting a shooting.
Baker and Baker’s brother were later arrested. Baker’s brother, as the gunman, was
ultimately convicted of second-degree murder for killing one individual, and of attempted
second-degree murder for injuring another. Baker entered an Alford plea1 to two counts of
intentionally aiding an offender pursuant to subdivision 3 of section 609.495, which is an
unranked offense pursuant to the sentencing guidelines. Baker was convicted of both
counts but sentenced on only one. The sentencing court assigned the offense a severity
level 9 and imposed an executed guidelines prison sentence of 86 months.
In his petition for postconviction relief, Baker claimed that the sentencing court
abused its discretion by assigning a severity level 9 to the offense and by denying his

1 An Alford plea allows a defendant to plead guilty while maintaining innocence of the
charged offense. State v. Goulette, 258 N.W.2d 758, 760-61 (Minn. 1977) (discussing
North Carolina v. Alford, 400 U.S. 25 (1970)).
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motion for a downward durational departure. The postconviction court denied Baker’s
petition.
Baker appeals.
DECISION
Baker contends that the postconviction court abused its discretion by denying his
petition: (1) by determining that the sentencing court had properly assigned a severity level
9 to his offense; and (2) by determining that the sentencing court properly denied his
motion for a downward durational departure. We disagree.
“We review the denial of a petition for postconviction relief for an abuse of
discretion.” Pearson v. State, 891 N.W.2d 590, 596 (Minn. 2017). Legal conclusions are
reviewed de novo and findings of fact are reviewed for clear error. Id.
A. The sentencing court acted within its discretion in assigning a severity level
9 to appellant’s offense.

Before a district court sentences a defendant for a felony -level offense, it must
determine the presumptive sentence based on the severity level of the offense and the
offender’s criminal-history score. State v. Bertsch, 707 N.W.2d 660, 666 (Minn. 2006).
The Minnesota Sentencing Guidelines specify a severity level for most criminal offenses.
Minn. Sent’g Guidelines 2.A (Supp. 2019). However, certain crimes are not assigned a
severity level and are left unranked. Aiding an offender in violation of Minn. Stat.
§ 609.495, subd. 3, is an unranked offense. Minn. Sent’g Guidelines 5.A (Supp. 2019).
For unranked offenses, the sentencing court “must assign an appropriate severity
level for the offense and specify on the record why that particular level was assigned .”
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Minn. Sent’g Guidelines 2.A.4 (Supp. 2019). The assignment of an appropriate severity
level to an unranked offense is guided by consideration of the following factors:
(1) The gravity of the specific conduct underlying the unranked offense;

(2) The severity level assigned to any ranked offense with elements that are
similar to the elements of the unranked offense;

(3) The conduct of and severity level assigned to other offenders for the same
unranked offense; and

(4) The severity level assigned to other offenders engaged in similar conduct.

State v. Kenard, 606 N.W.2d 440, 443-44 (Minn. 2000). An appellate court reviews a
district court’s severity-level determination for an abuse of discretion. Id. at 442.
In denying Baker’s petition, the postconviction court examined the transcript from
Baker’s sentencing hearing and determined: “the sentencing court was thoughtful, spent a
significant time researching, reviewing, and considering the facts and the parties’
arguments, laid out the sentencing court’s application of each of the Kenard factors, and
correctly assigned a severity level 9.” It further noted that, after hearing the state’s
arguments for assigning a severity level 10 and Baker’s arguments for assigning a severity
level 8:
[T]he sentencing judge found that (1) the gravity of the specific
conduct underlying the unranked offense, (2) the severity level
assigned to any ranked offense whose elements are similar to
those of the unranked offense, (3) the conduct of and severity
level assigned to other offenders for the same unranked
offense, and (4) the severity level assigned to other offenders
who engaged in similar conduct led to a rank of severity level
9.

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Our review of the sentencing hearing compels our agreement with the
postconviction court. The sentencing court carefully considered all of the Kenard factors
before assigning a severity level 9. We now consider how the sentencing court considered
each factor.
The Gravity of the Underlying Conduct
The sentencing court found that Baker committed multiple acts of concealment and
that the relevant conduct was ongoing rather than isolated; that he actively participated in
destroying evidence by cleaning out the van used to flee the crime scene; and that he
initially left and subsequently returned, continuing to help conceal the crime by driving the
van to another state. The sentencing court’s consideration of this factor supports its
assignment of a severity level 9.
The Severity Level Assigned to any Ranked Offense with Similar Elements

The sentencing court correctly noted that Minn. Stat. § 609.495, subd. 1 (2018), has
similar elements to the offense for which Baker was convicted and is ranked at the lowest
severity level of one. See id. at 443-44 (determining that the “ranked offense most similar
to [Minn. Stat. § 609.495, subd. 3] is aiding an offender under Minn. Stat. § 609.495, subd.
1(a)” and concluding that, while subdivision 1 offenses have a severity level of one,
“[o]bviously, the legislature considers convictions under subdivision 3 more serious than
those under subdivision 1”). The sentencing court then noted its reasons to consider that
Baker’s offense was much more serious than that ranked offense and reiterated its
reasoning that we describe above in the first factor. The sentencing court’s consideration
of this factor supports its assignment of a severity level 9.
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The Conduct of and Severity Level Assigned to Other Offenders for the Same
Unranked Offense, and the Severity Level Assigned to Other Offenders Engaged
in Similar Conduct
The sentencing court combined its consideration of the third and fourth Kenard
factors. It reviewed several cases involving offenders sentenced for the same unranked
offense as Baker, and it compared the severity levels assigned in those cases based on the
similarity of the offender’s conduct to Baker’s to inform its own severity level assignment.
It summarized its approach as follows:
I took to heart what some of the case law said and that is that
the Court cannot pick a number and then find a severity level
or an area to fit that number. I actually did what the case law
said, I looked at the law and I looked at other similar cases. I
looked at the sentencing guidelines; history of unranked
offenses, I went to our Judge’s Criminal Bench book, and I’ll
indicate some of the cases that I’ve reviewed later. But I’ve
looked at the law first before addressing the severity level. I
also reviewed the memos.

It is evident, therefore, that the sentencing court methodically considered all the
Kenard factors before assigning a severity level 9 to the offense for which Baker was
sentenced. The district court acted within its discretion to deny Baker’s postconviction
petition on this basis.
B. The sentencing court acted within its discretion to deny Baker’s request for a
downward durational departure.

Baker argues that “[a] downward durational departure is justified if the defendant’s
conduct is significantly less serious than that typically involved in the commission of the
offense,” and he contends that his conduct “was significantly less serious and less onerous
than that typically involved in the commission of this offense.”
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Appellate courts “afford the [sentencing] court great discretion in the imposition of
sentences and reverse sentencing decisions only for an abuse of that discretion.” State v.
Soto, 855 N.W.2d 303, 307-08 (Minn. 2014) (quotation omitted). A sentence that is
prescribed by the sentencing guidelines is “presumed to be appropriate.” Minn. Sent’g
Guidelines 1.B.13 (Supp. 2019). “This court will not generally review a district court’s
exercise of its discretion to sentence a defendant when the sentence imposed is within the
presumptive guidelines range.” State v. Delk, 781 N.W.2d 426, 428 (Minn. App. 2010),
rev. denied (Minn. July 20, 2010).
In denying postconviction relief, the district court “carefully review[ed] the record”
and concluded that the sentencing court considered Baker’s argument for a departure,
before rejecting it. Our review of the sentencing hearing transcript supports the district
court’s conclusion.
A district court may depart from a presumptive sentence if “identifiable, substantial,
and compelling circumstances” warrant a departure. Minn. Sent’g Guidelines 2.D.1 (Supp.
2019). However, a district court is not required to depart from a presumptive sentence
merely because it has the discretion to do so . State v. Olson, 765 N.W.2d 662, 664-65
(Minn. App. 2009) (concluding that “[i]t is within the district court’s broad discretion to
reach [the] conclusion” that “the presumptive sentence was appropriate”).
Notably, the durational departure sought by Baker was to a sentence of 48 months’
imprisonment. This is the presumptive mid-range sentence for a severity level 8 offense,
the severity level he argued should have been assigned to this unranked offense. As we
have already explained, the sentencing court carefully considered the Kenard factors before
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assigning a severity level 9 to Baker’s offense. By rejecting Baker’s argument to be
sentenced at a lower severity level, the sentencing court necessarily found that B aker’s
conduct was not less serious than usual for this offense. Therefore, the sentencing court
acted within its discretion by denying Baker’s departure motion.2
Affirmed.

2 Baker also claims that the sentencing court abused its discretion by imposing a
middle-of-the-box level 9 sentence instead of a bottom-of-the-box level 9 sentence.
However, any sentence within the presumptive range is considered a presumptive sentence.
State v. Jackson, 749 N.W.2d 353, 359 n.2 (Minn. 2008) (stating that “the lowest is not a
downward departure, nor is the highest an upward departure”). Therefore, the
postconviction court acted within its discretion to deny relief on this basis.