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This opinion is nonprecedential except as provided by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
A24-0301

State of Minnesota,
Respondent,

vs.

Marc Phillip Radel,
Appellant.

Filed April 21, 2025
Affirmed
Slieter, Judge

Ramsey County District Court
File No. 62-CR-23-273

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

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

Cathryn Middlebrook, Chief Appellate Public Defender, Gina D. Schulz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cochran, Presiding Judge; Slieter, Judge; and Larson,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
In this direct appeal from the judgment of conviction for threats of violence, and
following a stay and remand to permit appellant to seek postconviction relief from the
district court, appellant argues that the district court erred in calculating his criminal-history
2
score by including one-half point for an offense committed as part of the single course of
conduct as another offense included in his score. Because appellant’s criminal-history
score was properly calculated, the district court acted within its discretion by denying his
postconviction petition, and we affirm.1
FACTS
Appellant Marc Phillip Radel was convicted of threats of violence. Minn. Stat.
§ 609.713 (2022). At sentencing, the district court imposed a presumptive sentence of 24
months’ imprisonment based upon a criminal-history score of four, which was consistent
with the sentencing worksheet attached to the presentence investigation report. The
criminal-history score included, as relevant to this appeal, two-and-one-half points for three
2013 convictions—two attempted robberies and one fifth-degree possession of a controlled
substance.
Radel appealed his sentence, and this court stayed his direct appeal to allow him to
file a postconviction petition in district court contesting the accuracy of his criminal-history
score. Radel argued that the district court erred by assigning him one-half point for the
November 2013 fifth- degree possession-of-a-controlled-substance conviction because
respondent State of Minnesota failed to prove that it was not part of the same course of
conduct as the two attempted-robbery convictions that were sentenced on the same day.

1 Although Radel’s brief also argued that he should be allowed to withdraw his guilty plea
as unintelligently entered, Radel withdrew this issue prior to the appeal coming under
consideration by this court.
3
The district court denied Radel’s postconviction petition, determining that the
controlled-substance offense was not committed as part of a single course of conduct as
the two attempted robberies and, therefore, the one-half criminal-history point was properly
included in his criminal-history score.2
Radel appeals.
DECISION
We review a district court’s postconviction denial of a motion to correct a sentence
for an abuse of discretion. State v. Williams, 862 N.W.2d 701, 703 (Minn. 2015). This
discretion is abused “when its decision is based on an erroneous view of the law or is
against logic and the facts in the record.” Id. Whether a defendant’s criminal-history score
was properly calculated is a question of law that we review de novo. State v. Bell, 971
N.W.2d 92, 107 (Minn. App. 2022) (citing State v. Scovel , 916 N.W.2d 550, 554 (Minn.
2018)). To determine whether Radel’s criminal-history score is accurate, we must first
determine whether the sentence for the fifth-degree possession of a controlled substance
was proper. See Minn. Stat. § 609.035, subd. 1 (2022) (“if a person’s conduct constitutes
more than one offense under the laws of this state, the person may be punished for only
one offense”); see also State v. Jones, 848 N.W.2d 528, 533 (Minn. 2014) (“deciding
whether the district court’s imposition of two sentences was barred by section 609.035,
subdivision 1, requires us to determine first whether the conduct underlying the offenses
involved a single course of conduct”) . Radel does not contest the district court’s factual

2 In this case the state did not file a brief on appeal and accordingly, we consider the case
on its merits. Minn. R. Civ. App. P. 142.03.
4
findings. He instead argues it erred in its legal conclusion. Hence, our review is de novo.
State v. Barthman, 938 N.W.2d 257, 265 (Minn. 2020).
Whether multiple offenses arose out of a single course of conduct is a mixed
question of fact and law. Jones, 848 N.W.2d. at 533. To determine whether multiple
offenses constitute a single course of conduct “Minnesota courts consider whether the
conduct (1) shares a unity of time and place and (2) was motivated by an effort to obtain a
single criminal objective.” State v. Bauer, 776 N.W.2d 462, 478 (Minn. App. 2009), aff’d,
792 N.W.2d 825 (Minn. 2011) . To determine a single criminal objective, the court
examines “the relationship of the offenses to one another,” and whether the acts were
“necessary to or incidental to the commission of a single crime and motivated by an intent
to commit that crime.” State v. Bakken, 883 N.W.2d 264, 270-71 (Minn. 2016) (quotations
and citations omitted).
The state bears the burden of proving that multiple offenses were not committed as
part of a single course of conduct. Id. at 270. “When a defendant’s sentence is based on
an incorrect criminal-history score, his case must be remanded for resentencing.” State v.
Woods, 945 N.W.2d 414, 416-17 (Minn. App. 2020).
Radel claims that his 2013 convictions for attempted robberies and
controlled-substance possession were part of a single course of conduct such that the
one-half point for the controlled-substance possession ought not be added to his
criminal-history score. However, Radel points to no evidence in the record that indicates
that he possessed the same criminal objective when he committed these crimes, and our
review of the record finds no such evidence.
5
The district court found that, in June 2013, Radel committed two attempted
robberies. Each robbery involved a separate victim, one who was traveling in her vehicle
when Radel attempted to enter it, and another who was sitting in her parked vehicle when
Radel attempted to enter it. Radel possessed methamphetamine during the robbery
attempts. There is nothing in the record that suggests Radel was motivated to attempt the
robberies to obtain the methamphetamine in his possession. Rather, each robbery included
a separate victim and motive unrelated to Radel’s controlled-substance possession resulting
in “a divisible series of incidents rather than a single behavioral incident.” State v.
Krampotich, 163 N.W.2d 772, 776 (concluding that the unauthorized use of a motor
vehicle, simple robbery, simple assault as to one defendant, and aggravated assault as to
the other defendant were not a single behavioral incident and therefore was not the same
course of conduct).3
We agree with the district court’s determination that, from these facts, the state has
proved that Radel’s possession of the controlled substance was not part of the same course
of conduct as the attempted robberies. Robbery requires the use or threat of force to take
personal property. Minn. Stat § 609.24 (20 12). Conversely, possessing a controlled
substance requires only that a person possess the controlled substance. Minn. Stat.

3 Previously courts have used the phrases “single course of conduct” and “single
behavioral incident” interchangeably. See, e.g., State v. Eaton, 292 N.W.2d 260, 267
(Minn. 1980) (citation omitted). Our use of the phrase “single course of conduct” in this
opinion has the same meaning as the phrase “single behavioral incident.” See Jones, 848
N.W.2d at 531 n.1.
6
§ 152.025, subd. 2(1) (2012). Possession need not be, and by these facts is not, related to
an attempted robbery.
In sum, though the criminal acts were linked in time and place, they were not linked
by criminal objective. Because Radel’s conviction for possession of a controlled substance
was not part of the same course of conduct as the two attempted-robbery convictions, the
district court acted within its discretion by denying Radel’s postconviction petition because
his criminal-history score was correctly calculated.
Affirmed.