                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A15-0714

                                     State of Minnesota,
                                        Respondent,

                                               vs.

                                        Daniel Drljic,
                                         Appellant.

                                    Filed March 7, 2016
                                          Affirmed
                                      Connolly, Judge

                              Hennepin County District Court
                                File No. 27-CR-14-11241


Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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


         Considered and decided by Connolly, Presiding Judge; Stauber, Judge; and Reilly,

Judge.

                                      SYLLABUS

         For purposes of calculating felony criminal-history points for the crime of second-

degree burglary, the burglary of three separate businesses in one building on one day does

not constitute a single behavioral incident.
                                      OPINION

CONNOLLY, Judge

       Appellant challenges his 88-month prison sentence for first-degree aggravated

robbery, arguing that the district court erred in sentencing him based on a criminal-history

score of four. Appellant contends that because his 2011 burglary convictions involved a

“single behavioral incident,” only two of his three 2011 burglary convictions can properly

be counted in his criminal-history score under Minn. Sent. Guidelines 2.B.1.d(2) (Supp.

2013). Because appellant’s burglary of three separate businesses in one day does not

constitute a single behavioral incident, we affirm.

                                          FACTS

       In April 2014, respondent State of Minnesota charged appellant Daniel Drljic with

first-degree aggravated robbery for his participation in a robbery at a restaurant in

Richfield. At an omnibus hearing on December 15, 2014, the district court noted that if

appellant were convicted of the first-degree aggravated robbery charge, “the guidelines

would call for an 88-month prison term.” Respondent offered to “agree to a middle-of-the-

box disposition” of an “88-month prison commit” in exchange for not adding additional

charges. On January 7, 2015, respondent amended the complaint to add kidnapping,

second-degree assault, first-degree assault, and possession of a firearm by an ineligible

person charges. On January 23, appellant entered a plea of guilty to the first-degree

aggravated robbery charge in exchange for the dismissal of all other charges and an 88-

month prison term.




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       Prior to sentencing, the Minnesota Sentencing Guidelines Commission created a

sentencing worksheet for appellant. The sentencing worksheet listed a criminal-history

score of four. This score was calculated by adding together three second-degree burglary

convictions from February 2011 and a custody status point for being on probation at the

time of the April 2014 offense.

       On January 30, 2015, the district court sentenced appellant to an 88-month prison

term with 18 days’ credit for time served. Appellant now appeals his sentence, challenging

the district court’s determination of his criminal-history score.

                                           ISSUE

       Did appellant’s 2011 burglary convictions and sentences arise from a single

behavioral incident such that the district court should have counted only two of the three

sentences in his criminal-history score?

                                        ANALYSIS

       Appellant argues that “[appellant] had a criminal history score of three, and the

district court erred in sentencing him with a criminal history score of four.” He asserts that

because his 2011 burglary convictions involved “a single behavioral incident,” only two of

his 2011 burglary sentences can properly be counted in his criminal-history score under

Minn. Sent. Guidelines 2.B.1.d(2). Respondent contends that “[appellant’s] criminal

history score was properly calculated because, in addition to 1 custody status point, the

three burglaries were motivated by divisible intentions and motivations and, therefore, did

not constitute a single behavioral incident.”




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         While the record does not contain any direct discussion of appellant’s criminal-

history score or the sentencing worksheet by the district court, it noted that “the guidelines

would call for an 88-month prison term” in this situation and characterized that prison term

as a “middle-of-the-box guideline sentence,” indicating that the 88-month prison term was

the presumptive sentence for appellant under the Minnesota Sentencing Guidelines and

was thus necessarily based on his criminal-history score.

         A sentence based on an incorrect criminal-history score may be challenged on

appeal, regardless of whether the defendant raised the issue in district court. See State v.

Maurstad, 733 N.W.2d 141, 148 (Minn. 2007) (noting that “a defendant cannot forfeit

review of [the defendant’s] criminal history score calculation”). We review the 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), review denied (Minn. Aug. 20,

2002).

         The sentencing guidelines determine presumptive sentences based on the severity

of an offense and the offender’s criminal-history score. Minn. Sent. Guidelines 2.C (Supp.

2013). An “offender is assigned a particular weight for every felony conviction for which

a felony sentence was stayed or imposed before the current sentencing.” Minn. Sent.

Guidelines 2.B & cmt. 2.B.101 (Supp. 2013). “When multiple offenses arising from a

single course of conduct involving multiple victims were sentenced,” the sentencing

guidelines instruct the district court to “include in criminal history only the weights from

the two offenses at the highest severity levels.” Minn. Sent. Guidelines 2.B.1.d(2).




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       In this case, there is no dispute that the prior burglary convictions, which formed

the basis for the three felony criminal-history points, involved multiple victims. Appellant

challenges the district court’s implicit finding that the 2011 burglary convictions did not

arise from a single behavioral incident1 under Minn. Sent. Guidelines 2.B.1.d(2) and thus

should be counted separately for purposes of appellant’s criminal-history score. Id.

       “[T]he factors to be considered in determining whether multiple offenses constitute

a single behavioral act are time, place, and whether the offenses were motivated by a desire

to obtain a single criminal objective.” State v. Gould, 562 N.W.2d 518, 521 (Minn. 1997).

“Broad statements of criminal purpose do not unify separate acts into a single course of

conduct.” State v. Jones, 848 N.W.2d 528, 533 (Minn. 2014); see also Gould, 562 N.W.2d

at 521 (“[T]he criminal plan of obtaining as much money as possible is too broad an

objective to constitute a single criminal goal . . . .”).

       The 2011 burglary convictions at issue here arose from a series of events that

occurred in the early morning hours of December 9, 2009 at a building housing an art

studio, liquor store, and coffee house in St. Paul. Each of the three businesses had its own

address and was owned and operated separately.

       According to the complaint,2 appellant and a codefendant gained access to the art

studio by prying open the door. An aluminum ruler and aluminum t-square were removed



1
  “Legal authorities use the terms ‘single course of conduct’ and ‘single behavioral
incident’ interchangeably.” Minn. Sent. Guidelines 2.B & cmt. 2.B.116. Because both
parties use the term “single behavioral incident,” that term is used in this opinion.
2
  Both parties use the complaint associated with the 2011 burglary convictions as the factual
basis for those convictions for the purposes of this appeal.

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from the art studio. Appellant and his codefendant then “gained access to the liquor store

next door by breaking through the wall from the art studio to [the liquor store].” They

removed items worth $1,364.65 from the liquor store, including “a large amount of boxes

of liquor.” Appellant and his codefendant entered the coffee house by breaking through a

sealed door in the art studio, removed $150, broke the cash register, rummaged through

several of the drawers and shelves, and scattered items all over the floor.

       Appellant argues that the burglaries of the art studio, liquor store, and coffee house

are similar to the burglaries at issue in Langdon v. State, 375 N.W.2d 474, 474-77 (Minn.

1985). In Langdon, the defendant entered the laundry rooms in seven different buildings

within an apartment complex and used a lock pick to open the locked coin boxes on the

washers and dryers located therein. Langdon, 375 N.W.2d at 475. The district court

sentenced the defendant to four concurrent sentences for burglary convictions associated

with this incident. Id. The supreme court vacated three of the four sentences, reasoning

that because the defendant had the same “overall criminal objective” in opening the

different locked coin boxes across the complex, the four burglaries arose from a single

behavioral incident. Id. at 476-77.

       Langdon is distinguishable from this case.        The supreme court in Langdon

specifically noted that “[i]f [the defendant] had burglarized a number of residences owned

by a number of different people in a single afternoon or if he had burglarized the apartments

of a number of different people, then multiple punishment might well have been proper.”

Id. at 476. Appellant argues that this statement does not affect the determination at issue

here because it addresses a defendant receiving multiple sentences for a single behavioral


                                             6
incident involving multiple victims under the sentencing guidelines, not the calculation of

an offender’s criminal-history score under Minn. Sent. Guidelines 2.B.1.d(2). However,

to the extent that the supreme court’s determination in Langdon that the defendant had one

“overall criminal objective” is dependent on there being a single victim in that case, its

reasoning does not apply here.

       Appellant also contends that his conduct “even more clearly involved a single

behavioral incident” than the defendant’s conduct in Langdon did. Appellant notes that

“he broke into a single building, the three businesses he burglarized were physically

connected, and there was no time separating the burglaries.” While appellant is correct

that the three businesses he burglarized were physically connected as part of one building

and the burglaries appear to have been very close in time, the three businesses were

functionally separate. Appellant was only able to access the liquor store and coffee house

from the art studio after breaking through a wall and a sealed door, respectively.

       Moreover, the three burglaries appear to lack the unifying criminal goal necessary

for them to constitute a single behavioral incident. Not only did appellant and his

codefendant separately break into the three businesses, they also removed different items

from each business, including the ruler and t-square from the art studio, boxes of liquor

from the liquor store, and $150 in cash from the coffee house. The only apparent unifying

criminal goal for the three burglaries was obtaining as much money and valuables as

possible, an objective which the supreme court has determined is too broad to constitute a

single criminal goal. See Gould, 562 N.W.2d at 521. (“[T]he criminal plan of obtaining

as much money as possible is too broad an objective to constitute a single criminal goal


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. . . .”) Thus, the three 2011 burglary convictions did not constitute a single behavioral

incident such that they should have only been counted as two rather than three criminal-

history points in appellant’s criminal-history score under Minn. Sent. Guidelines

2.B.1.d(2).

                                      DECISION

       Because appellant’s three 2011 burglary convictions did not constitute a single

behavioral incident, the district court did not abuse its discretion in sentencing appellant to

an 88-month presumptive sentence based on a total criminal-history score of four.

       Affirmed.




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