DeMarcus LeMaine Barker, 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This opinion is nonprecedential except as provided by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
A24-1988

DeMarcus LeMaine Barker, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed October 20, 2025
Affirmed
Bratvold, Judge

Rice County District Court
File No. 66-CR-16-575

DeMarcus LeMaine Barker, Bayport, Minnesota (pro se appellant)

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

Brian M. Mortenson, Rice County Attorney, Sean R. McCarthy, Assistant County
Attorney, Faribault, Minnesota (for respondent)

Considered and decided by Bjorkman, Presiding Judge; Frisch, Chief Judge; and
Bratvold, Judge.
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
This appeal follows a direct appeal that reversed, in part, appellant’s sentence and
remanded for resentencing and to amend the sentencing order. After resentencing,
appellant moved to correct his sentence under Minn. R. Crim. P. 27.03, subd. 9, and here
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appeals the denial of that motion . Appellant argues that the district court (1) abused its
discretion because his sentence is based on an incorrect criminal-history score and (2) erred
by imposing a sentence that is an upward durational departure from the Minnesota
Sentencing Guidelines. First, we conclude that the district court did not abuse its discretion
in calculating appellant’s criminal-history score. Second, we determine that appellant
failed to challenge the upward durational departure in the motion to correct his sentence.
Even if the second issue were properly before this court, the district court based the
departure on an aggravating factor that this court upheld in the direct appeal. Thus , we
affirm.
FACTS
In March 2016, respondent State of Minnesota charged appellant DeMarcus
LeMaine Barker with importing controlled substances across state lines under Minn. Stat.
§ 152.0261, subd. 1 (2014), and fleeing a peace officer in a motor vehicle under Minn. Stat.
§ 609.487, subd. 3 (2014). The complaint, as amended in April 2017, charged Barker with
seven additional counts of controlled-substance-related offenses. Barker waived his right
to a jury trial. Following a court trial, the district court found Barker guilty on all counts.
At Barker’s November 2017 sentencing hearing, the district court determined that
Barker’s criminal-history score was seven points. The district court also determined that
two aggravating factors applied under Minn. Stat. § 609.1095 (2014): (1) a pattern of
criminal conduct and (2) danger to public safety. The district court sentenced Barker to 316
months in prison for importing controlled substances across state lines—an upward
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durational departure based on aggravating factors—and imposed a guidelines sentence of
22 months for fleeing a peace officer, to be served concurrently.
Barker appealed. This court affirmed in part, reversed in part, and remanded. State
v. Barker, No. A18-0206, 2019 WL 272873, at *1 (Minn. App. Jan. 22, 2019), rev. denied
(Minn. Mar. 27, 2019). In a nonprecedential opinion, this court affirmed on the sufficiency
of the evidence for possession of controlled substances and intent to sell marijuana. Id. at
*2-4. On the other hand, this court reversed and remanded Barker’s sentence, concluding
that the district court erred in assigning criminal-history points for three of Barker’s prior
Illinois convictions from 2002 and 2005. Id. at *6-7. This court affirmed the upward
durational departure from the sentencing guidelines, determining that the district court
improperly relied on the “pattern of criminal conduct” aggravating factor, but that it
properly relied on the “danger to public safety” aggravating factor. Id. at *9. Finally, this
court concluded that the district court erred when it denied Barker supervised release and
therefore “remand[ed] to the district court to amend the sentencing order reinstating early
release eligibility.” Id. The Minnesota Supreme Court denied Barker’s petition for further
review.
On remand, the district court resentenced Barker in July 2019 using a corrected
criminal-history score of five and one-half points, rounded down to five points.1 This score
included two prior felony convictions from December 2011 in Goodhue County (Goodhue
County convictions): second-degree assault and unlawful firearm possession. The district

1 No partial criminal-history points are given; “the point value must be rounded down to
the nearest whole number.” Minn. Sent’g Guidelines 2.B.1.i & cmt. 2.B.102 (Supp. 2015).
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court assigned one and one-half felony points for each Goodhue County conviction. Based
on the aggravating factor upheld in the direct appeal, the district court imposed a sentence
of 316 months in prison, an upward durational departure, for importing controlled
substances across state lines and imposed a guidelines sentence of 22 months for fleeing a
peace officer.
In July 2021, Barker petitioned for postconviction relief, seeking resentencing on
three grounds, arguing that (1) the amelioration doctrine as discussed in State v. Kirby ,
899 N.W.2d 485 (Minn. 2017), applies to his case; (2) his Blakely waiver of a jury
determination of the aggravating factor was invalid; and (3) the district court erred in
relying on danger to public safety as an aggravating factor because “there is nothing
inherently violent about the importation of drugs across state lines.” In August 2021, the
district court denied the petition on the merits without a hearing. Barker did not appeal.
In September 2024, Barker moved the district court to correct his sentence under
Minn. R. Crim. P. 27.03, subd. 9. Barker argued that the district court erred by calculating
a criminal-history score of five and one -half points on resentencing, contending that his
two prior Goodhue County convictions “arose from the same single-behavioral incident.”
Barker maintained that the district court should have assigned felony points for only one
of the Goodhue County convictions. His motion requested that “his sentence be corrected
using the correct criminal history score of four (4) points.”
The district court denied Barker’s motion without a hearing. The district court’s
written order reasoned that, although the single-behavioral-incident rule prohibits multiple
sentences for multiple convictions that are part of a single behavioral incident and the
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parties agree that the Goodhue County convictions “arose out of the same behavioral
incident,” a statutory exception for firearm convictions applies. Because one of Barker’s
Goodhue County convictions was for unlawful firearm possession, the
single-behavioral-incident rule did not apply. The district court concluded that Barker’s
criminal-history score of five and one-half points was accurate.
Barker appeals.
DECISION
I. The district court did not abuse its discretion by denying Barker’s motion to
correct his sentence.
Under Minnesota Rule of Criminal Procedure 27.03, subdivision 9, “[t]he court may
at any time correct a sentence not authorized by law.” “For a sentence to be unauthorized,
it must be contrary to law or applicable statutes.” State v. Schnagl, 859 N.W.2d 297, 301
(Minn. 2015). Appellate courts “review a district court’s denial of a motion to correct a
sentence for an abuse of discretion.” Munt v. State, 920 N.W.2d 410, 414 (Minn. 2018) .
“Specifically, [appellate courts] review the district court’s legal conclusions de novo and
its factual findings under the clearly erroneous standard.” Townsend v. State, 834 N.W.2d
736, 738 (Minn. 2013). “[W]hen a defendant files a motion under Minn. R. Crim. P. 27.03,
subd. 9, to correct a sentence after the time for direct appeal has passed, the defendant bears
the burden of proving that his or her sentence was based on an incorrect criminal-history
score.” Williams v. State, 910 N.W.2d 736, 743 (Minn. 2018). In the first issue, Barker
argues that the district court sentenced him with an incorrect criminal-history score. A
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district court’s calculation of a criminal-history score is reviewed for abuse of discretion.
State. v. Maley, 714 N.W.2d 708, 711 (Minn. App. 2006).
Barker contends that the district court’s criminal-history score was incorrect
because the Goodhue County convictions, for each of which he had been assigned one and
one-half criminal-history points, were part of the “same behavioral incident.”
The same -behavioral-incident rule is set out in Minn. Stat. § 609.035, subd. 1
(2014): “if a person’s conduct constitutes more than one offense under the laws of this
state, the person may be punished for only one of the offenses and a conviction or acquittal
of any one of them is a bar to prosecution for any other of them.” This statute “prohibits
the imposition of multiple sentences for offenses committed as part of a single behavioral
incident.” State v. Williams, 771 N.W.2d 514, 520 (Minn. 2009). Statutory exceptions
apply, however, including an exception for firearm offenses. See Minn. Stat. § 609.035,
subds. 3-6 (2014). A conviction for a firearm offense “is not a bar to conviction of or
punishment for any other crime committed by the defendant as part of the same conduct. ”
Id., subd. 3.
In its order denying Barker’s motion for a corrected sentence, the district court
considered how to calculate Barker’s criminal-history score for the Goodhue County
convictions. The district court acknowledged that there was “no dispute that the two
[Goodhue County] offenses arose out of the same behavioral incident.” But because one of
the Goodhue County convictions was a firearm offense, the district court analyzed the
statutory exception for firearm offenses in Minn. Stat. § 609.035, subd. 3, as well as the
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sentencing guidelines. The district court concluded that “both Goodhue County convictions
were properly considered in calculating [Barker’s] criminal history score.”
On appeal, Barker argues that he should have received only two points total for the
Goodhue County convictions, which would yield a total criminal-history score of four and
one-half points rather than the total criminal- history score of five and one-half points the
district court calculated at his resentencing. Barker’s brief to this court does not discuss the
statutory exception for firearm offenses, n or does Barker discuss the relevant sentencing
guidelines.
We agree with the district court that Barker was properly sentenced for both
Goodhue County offenses under the firearm exception to the same-behavioral-incident rule
in Minn. Stat. § 609.035, subd. 3.2 As to the criminal-history score, the district court noted
that Barker “appears to argue that the Minnesota Sentencing Guidelines prevent the court
from considering both Goodhue County convictions in calculating [Barker’s] criminal
history score.” Prior felony convictions for which a sentence was imposed are generally
assigned criminal-history points based on the severity level of the offense. Minn. Sent’g

2 The supreme court’s decision in Williams, 771 N.W.2d 514, as noted by the district court,
supports applying the statutory exception for firearm offenses to Barker’s Goodhue County
convictions. In Williams, the district court convicted Williams of first-degree assault and
unlawful possession of a firearm, both of which arose from the same behavioral incident.
771 N.W.2d at 520. The district court first sentenced Williams for the firearm conviction,
which increased his criminal-history score by one point when he was sentenced for the
assault conviction. Id. at 517. The supreme court affirmed, reasoning that the exception to
the single-behavioral-incident rule for firearm offenses applied to Williams’s case. Id. at
524. The supreme court described the exception as providing that a “defendant convicted
of a felon-in-possession-of-a-firearm offense may also be convicted and sentenced for any
other offense committed as part of the same behavioral incident.” Id.
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Guidelines 2.B.1 (Supp. 2015). There are, however, “exceptions to including prior felonies
in criminal history when multiple felony sentences were imposed in a previous court
appearance.” Minn. Sent’g Guidelines 2.B.1.d. In one exception, the guidelines instruct
that, “[w]hen multiple sentences for a single course of conduct were imposed under Minn.
Stats. §§ 152.137, 609.585, or 609.251, include in criminal history only the weight from
the offense at the highest severity level.” Minn. Sent’g Guidelines 2.B.1.d.1.
But as the district court explained, “[t]his exception does not apply to multiple
sentences for a single course of conduct imposed under Minn. Stat. § 609.035, subd. 3”—
the firearm exception to the same-behavioral -incident rule. Thus, t he inclusion of both
Goodhue County convictions in Barker’s criminal-history score is consistent with the
sentencing guidelines. See Williams, 771 N.W.2d 520-23 (interpreting a parallel sentencing
guideline limiting the use of current multiple convictions and concluding that the absence
of Minn. Stat. § 609.035, subd. 3, from the list of exceptions means that convictions for
which multiple sentences were imposed under that provision may be included in a
defendant’s criminal-history score).
We conclude that the Goodhue County convictions were properly counted in
Barker’s criminal-history score. The district court, therefore, did not abuse its discretion
by denying Barker’s motion to correct his sentence.
II. Barker may not challenge, for the first time on appeal, the district court’s
decision to impose an upward durational departure when it resentenced him
for importing controlled substances across state lines.
Barker argues that the district court abused its discretion on remand when it
resentenced him to 316 months in prison—an upward durational departure. Barker
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contends that, upon resentencing, he was “entitled to be re-sentenced to a
bottom-of-the-box sentence under a correct criminal history score.”
In his motion to correct his sentence, Barker challenged only his criminal-history
score for the Goodhue County convictions; he did not challenge the district court’s decision
to impose an upward durational departure. Generally, appellate courts “will not decide
issues which are not first addressed by the trial court and are raised for the first time on
appeal.” State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989); see also Azure v. State,
700 N.W.2d 443, 447 (Minn. 2005) (“It is well settled that a party may not raise issues for
the first time on appeal from denial of postconviction relief.” (quotation omitted)). Because
Barker raises this issue for the first time on appeal, we need not decide it.
Even if Barker had raised this issue during district court proceedings, we would
reject his position based on the law-of-the-case doctrine, which provides that “when a court
decides upon a rule of law, that decision should continue to govern the same issues in
subsequent stages in the same case.” Lynch v. State, 749 N.W.2d 318, 321 (Minn. 2008)
(quotation omitted) (applying the law-of-the-case doctrine to reject a postconviction claim
considered on direct appeal). The supreme court recently applied the law-of-the-case
doctrine to reject a motion to correct an appellant’s sentence based on a challenge that the
supreme court had decided in an earlier appeal. Townsend v. State, 3 N.W.3d 13, 17 (Minn.
2024).
On direct appeal from Barker’s conviction and sentence, this court determined that
Barker’s sentence of 316 months was an upward durational departure that was properly
supported by one aggravating factor—danger to public safety. Barker, 2019 WL 272873,
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at *8. This court relied on Minn. Stat. § 609.1095, subd. 2 (2014), reasoning that the statute
“authorizes an upward sentencing departure for a violent felony conviction, up to the
statutory maximum sentence, when an offender, who is at least 18 years old, has two or
more prior convictions for violent crimes, and the fact-finder determines that the offender
is a danger to public safety.” Id. This court reviewed the district court’s reasons for finding
danger to public safety as an aggravating factor for Barker’s sentence for importing
controlled substances across state lines and concluded that “the district court stated a valid
reason for departure, which independently justified departure up to the statutory maximum
of 35 years.” Id.
On remand, the district court relied on danger to public safety as an aggravating
factor to impose an upward durational departure when sentencing Barker for importing
controlled substances across state lines. Because we already determined that the district
court did not abuse its discretion by relying on this aggravating factor, Barker’s second
issue is barred by law of the case. See Townsend, 3 N.W.3d at 17.
Affirmed.