This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0380
Darwin Ray Battle-Bey, petitioner,
Appellant,
vs.
State of Minnesota,
Respondent.
Filed November 9, 2015
Affirmed
Reilly, Judge
Ramsey County District Court
File No. 62-CR-91-02843
Darwin Ray Battle-Bey, Bayport, Minnesota (pro se appellant)
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney, St.
Paul, Minnesota (for respondent)
Considered and decided by Reilly, Presiding Judge; Schellhas, Judge; and Minge,
Judge.*
*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
REILLY, Judge
Appellant contests the denial of his motion for sentence correction under Minn. R.
Crim. P. 27.03, subd. 9. He challenges his two 1992 convictions of second-degree
murder and his sentence of 480 months. We affirm.
FACTS
Appellant Darwin Ray Battle-Bey was convicted of two counts of second-degree
murder in 1992. The district court imposed one sentence of 480 months, which was an
upward durational departure from the presumptive sentence under the Minnesota
Sentencing Guidelines and the statutory-maximum sentence for second-degree murder.
Battle-Bey appealed his convictions and sentence, and we affirmed. See State v. Battle,
No. C6-92-1076, 1993 WL 121269 (Minn. App. Apr. 20, 1993), review denied (Minn.
May 20, 1993). Battle-Bey filed a postconviction petition in 1996 that was denied by the
district court, and his appeal to this court was dismissed as untimely. See Battle v. State,
No. C8-96-2383 (Minn. App. Jan. 8, 1997) (order). He filed a second postconviction
petition in 2005 that was also denied by the district court, and we affirmed on appeal.
See Battle-Bey v. State, No. A06-1258 (Minn. App. Aug. 14, 2007), review denied (Minn.
Nov. 13, 2007).
In 2014, Battle-Bey filed a motion for sentence correction under Minn. R. Crim. P.
27.03, subd. 9, arguing that his sentence was not authorized by law. The district court
construed the motion as a postconviction petition and denied relief after determining that
all of Battle-Bey’s arguments were either barred or without merit. This appeal follows.
2
DECISION
“The court may at any time correct a sentence not authorized by law.” Minn. R.
Crim. P. 27.03, subd. 9. A denial of a motion to correct a sentence is reviewed for an
abuse of discretion, and “[a] court abuses its discretion when its decision is based on an
erroneous view of the law or is against logic and the facts in the record.” Ouk v. State,
847 N.W.2d 698, 701 (Minn. 2014) (quotation omitted). “[C]ourts in some
circumstances have the authority to treat a request to correct a sentence purportedly
brought under Rule 27.03 as a petition for postconviction relief.” State v. Coles, 862
N.W.2d 477, 480 (Minn. 2015).
A person who claims that his conviction or sentence violates his rights or the law
may file a postconviction petition. Minn. Stat. § 590.01, subd. 1 (2014). A district court
must hold a hearing on a postconviction petition “[u]nless the petition and the files and
records of the proceeding conclusively show that the petitioner is entitled to no relief.”
Minn. Stat. § 590.04, subd. 1 (2014). But the petition may not be filed more than two
years after an appellate court’s disposition of a direct appeal. Minn. Stat. § 590.01, subd.
4(a)(2) (2014); see also 2005 Minn. Laws ch. 136, art. 14, § 13, at 1097-98 (stating that
the time bar in section 590.01, subdivision 4(a), became effective on August 1, 2005, and
that “[a]ny person whose conviction became final before August 1, 2005, shall have two
years after the effective date . . . to file a petition for postconviction relief”). And a
petition filed “after a direct appeal has been completed may not be based on grounds that
could have been raised on direct appeal of the conviction or sentence.” Minn. Stat.
§ 590.01, subd. 1; see State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976)
3
(stating that “where direct appeal has once been taken, all matters raised therein, and all
claims known but not raised, will not be considered upon a subsequent petition for
postconviction relief”); see also Lussier v. State, 853 N.W.2d 149, 152 (Minn. 2014)
(stating that Knaffla’s procedural bar has been “extended . . . to claims that were, or
should have been, raised in a previous postconviction petition”). A denial of
postconviction relief and a hearing is reviewed for an abuse of discretion. State v. Vang,
847 N.W.2d 248, 266 (Minn. 2014).
Battle-Bey argues that his criminal-history score was miscalculated for sentencing.
“[A] sentence based on an incorrect criminal history score is an illegal sentence” that is
correctable at any time under rule 27.03, subdivision 9. State v. Maurstad, 733 N.W.2d
141, 147 (Minn. 2007) (stating that “a defendant may not waive review of his criminal
history score calculation”). A motion brought under rule 27.03, subdivision 9, to
challenge the accuracy of a criminal-history score is not subject to the postconviction
time or procedural bars. See Vazquez v. State, 822 N.W.2d 313, 314-15 (Minn. App.
2012).
Battle-Bey argues that the district court erred by adding two points to his criminal-
history score for his 1978 conviction of attempted second-degree murder. The applicable
version of the sentencing guidelines is the version that was in effect when Battle-Bey
committed the two crimes of second-degree murder in 1991. See Minn. Sent. Guidelines
3.G.1 (2014) (stating that modifications to the sentencing guidelines apply “to offenders
whose date of offense is on or after the specified modification effective date”); Minn.
Sent. Guidelines III.F (1990) (same). Attempted second-degree murder was a severity-
4
level-ten offense when Battle-Bey committed the crimes of second-degree murder in
1990. See Minn. Sent. Guidelines II.G (Supp. 1991) (stating that the presumptive
sentence for an attempted offense is determined by looking at the grid cell for the
offender’s criminal-history score and “the severity level of the completed or intended
offense” and dividing the duration in half); Minn. Sent. Guidelines IV, V (Supp. 1991)
(stating that second-degree intentional murder is a severity-level-ten offense); see also
Minn. Sent. Guidelines cmt. II.B.101 (1990) (“The appropriate severity level shall be
based on the severity level ranking of the prior offense of conviction that is in effect at
the time the offender commits the current offense.”). Based on the 1990 sentencing
guidelines, the 1978 conviction was properly assigned two criminal-history points. See
Minn. Sent. Guidelines II.B.1.a (1990) (stating that prior convictions of severity-level-ten
offenses are assigned two points for the purpose of determining a criminal-history score).
And it was proper for the district court to consider the 1978 conviction when calculating
Battle-Bey’s criminal-history score. See Minn. Sent. Guidelines II.B.1.e (1990) (“Prior
felony sentences . . . following felony convictions will not be used in computing the
criminal history score 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.”).
Battle-Bey also argues that the district court erred when adding points to his
criminal-history score for his two 1981 federal bank-robbery convictions. Battle-Bey
was convicted of aiding and abetting armed bank robbery and of aiding and abetting use
of force and violence to rob a bank. “[C]onvictions from other jurisdictions must, in
fairness, be considered in the computation of an offender’s criminal history index score.”
5
Minn. Sent. Guidelines cmt. II.B.502 (1990). “[T]he sentencing court, in its discretion,
should make the final determination as to the weight accorded foreign convictions. In so
doing, sentencing courts should consider the nature and definition of the foreign offense,
as well as the sentence received by the offender.” Minn. Sent. Guidelines cmt. II.B.504
(1990). The district court acted within its discretion by equating aiding and abetting
armed bank robbery with aggravated robbery and by adding 1.5 points to Battle-Bey’s
criminal-history score for that federal conviction. See Minn. Sent. Guidelines II.B.1.a
(stating that prior convictions of severity-level-seven offenses are assigned 1.5 points for
the purpose of determining a criminal-history score); Minn. Sent. Guidelines IV, V
(stating that aggravated robbery is a severity-level-seven offense). The district court also
acted within its discretion by granting Battle-Bey’s request at the sentencing hearing to
equate aiding and abetting use of force and violence to rob a bank with simple robbery
and by adding one point to his criminal-history score for that federal conviction. See
Minn. Sent. Guidelines II.B.1.a (stating that prior convictions of severity-level-five
offenses are assigned one point for the purpose of determining a criminal-history score);
Minn. Sent. Guidelines IV, V (stating that simple robbery is a severity-level-five
offense).
Battle-Bey contends that the district court erred by using partial points when
calculating his criminal-history score. Partial points may be considered when adding the
components of a criminal-history score, but a total for a criminal-history score is rounded
down so as not to include partial points. See Minn. Sent. Guidelines II.B.1.a (awarding
partial points for prior convictions of offenses of severity levels one, two, six, and seven);
6
Minn. Sent. Guidelines cmt. II.B.101 (“No partial points are given . . . . For example, an
offender with a total weight of 2 1/2 would have 2 felony points.”). Two points for
Battle-Bey’s 1978 conviction, 2.5 points for his 1981 convictions, and one custody-status
point totaled 5.5 points, which was rounded down at sentencing for a criminal-history
score of five. Battle-Bey’s criminal-history score was correctly calculated based on the
law in effect when the crimes of second-degree murder were committed.
Battle-Bey challenges the district court’s justification for imposing an upward-
departure sentence. This issue was raised and decided on direct appeal. See Battle, 1993
WL 121269, at *3 (“The upward durational departure is supported by the nature of the
offense and Battle’s prior felony with victim injury.”). Battle-Bey also challenges his
two convictions of second-degree murder when there was one victim. It is not proper to
use rule 27.03, subdivision 9, to challenge a conviction, Johnson v. State, 801 N.W.2d
173, 176 (Minn. 2011), and this issue could have been raised on direct appeal, in a prior
postconviction petition, and within two years of August 1, 2005. These challenges are
procedurally barred and time barred.
Because Battle-Bey’s arguments on appeal are without merit, the district court did
not abuse its discretion by denying relief and by declining to hold a hearing.
Affirmed.
7