State v. Flemino
| Decision Date | 04 April 1995 |
| Docket Number | No. CX-94-1523,CX-94-1523 |
| Citation | 529 N.W.2d 501 |
| Parties | STATE of Minnesota, Respondent, v. Enrico Antonio FLEMINO, Appellant. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
When a 20-year-old criminal defendant has four juvenile motor vehicle theft offenses and seven adult felony convictions for motor vehicle theft and third-degree burglary and is then convicted of two counts of felon in possession of a handgun, he may properly be sentenced as a career offender under Minn.Stat. Sec. 609.152, subd. 3 (1992).
Hubert H. Humphrey, III, Atty. Gen., Susan Gaertner, Ramsey County Atty., Steven C. DeCoster, Asst. County Atty., St. Paul, for respondent.
John M. Stuart, State Public Defender, Evan W. Jones, Asst. State Public Defender, Minneapolis, for appellant.
Considered and decided by DAVIES, P.J., RANDALL, and MULALLY, * JJ.
Appellant Enrico Antonio Flemino, convicted of two counts of felon in possession of a handgun, appeals his sentence for the statutory maximum of 60 months under the career offender statute, Minn.Stat. Sec. 609.152, subd. 3 (1992). We affirm.
Twenty-year-old Flemino was convicted of two counts of felon in possession of a handgun under Minn.Stat. Sec. 624.713, subds. 1(b), 2 (1992). At sentencing, his total criminal history score was ten. The ten points reflected: (1) four motor vehicle offenses committed as a 16 and 17-year-old; (2) seven motor vehicle theft and third degree burglary felony convictions as a 17 and 18-year-old; and (3) possession of a handgun by a prohibited person while on supervised release. The only break between these twelve offenses was two years of incarceration immediately preceding the present possession convictions.
The presumptive sentence for Flemino's present convictions was 28 months. Pursuant to the career offender statute, he received 60 months.
Did the sentencing court properly find appellant to be a career offender under Minn.Stat. Sec. 609.152, subd. 3 (1992)?
Since August 1, 1990, "career offenders" may receive an aggravated durational departure from the presumptive sentence. 1989 Minn.Laws ch. 290, art. 2, Secs. 9, 18. The statute states:
Whenever a person is convicted of a felony, and the judge is imposing an executed sentence based on a sentencing guidelines presumptive imprisonment sentence, the judge may impose an aggravated durational departure from the presumptive sentence up to the statutory maximum sentence if the judge finds and specifies on the record that the offender has more than four prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.
Minn.Stat. Sec. 609.152, subd. 3 (1992). Here, the court specifically found that Flemino had more than four prior felony convictions and that the present offense was part of a pattern of criminal conduct. Consequently, the court sentenced Flemino to the statutory maximum of 60 months as a "career offender," instead of the presumptive term of 28 months under the sentencing guidelines.
It is undisputed that Flemino has the requisite four felony convictions--he has seven prior to the present convictions. The question raised on appeal is whether Flemino's convictions for felon in possession of a handgun satisfied the requirement that they be "committed as part of a pattern of criminal conduct." This presents an issue of statutory construction: Whether the legislature intended to extend an aggravated durational departure to a young offender with Flemino's criminal history.
This court will not disturb a trial court's departure from a presumptive sentence absent a clear abuse of discretion. State v. Rachuy, 495 N.W.2d 6, 8 (Minn.App.1993), aff'd as modified, 502 N.W.2d 51 (Minn.1993). Construction of a statute, however, is a question of law, fully reviewable by this court. Id.
According to the preamble of the act, the career offender subdivision is one part of the statute expressly enacted to permit "courts to sentence dangerous offenders and career criminals to longer periods of incarceration." 1989 Minn.Laws ch. 290. In addition to the career offender subdivision, the statute increases sentences for "dangerous offenders" who have perpetrated specific "violent" crimes. Minn.Stat. Sec. 609.152, subd. 2 (1992); see also id., subd. 2a (Supp.1993) ("dangerous repeat offenders"). Unlike the specificity of the dangerous offender subdivision, subdivision 3 is simply aimed at "career" offenders whose "present offense is a felony that was committed as part of a pattern of criminal conduct." Id., subd. 3 (1992).
When the career offender statute was enacted in 1989, it contained additional restrictive language requiring that the felony be part of a pattern of criminal conduct "from which a substantial portion of the offender's income was derived." 1989 Minn.Laws ch. 290, art. 2, Sec. 9. The bill's sponsor clarified that
this is trying to get at the career criminal who is a professional in the sense that he or she is living off the crime * * * the professional drug pusher, the professional burglar, the professional shoplifter, those type of criminals.
Hearing on H.F. No. 282 Before the House Judiciary Committee (Feb. 13, 1989) (statement of Rep. Carruthers). At the time of Flemino's sentencing, the career offender statute no longer contained the income requirement, and the legislative history supplies no explanation for the deletion. See 1992 Minn.Laws ch. 571, art. 2, Sec. 10 ( Minn.Stat. Sec. 609.152, subd. 3).
Aside from a means of support, "career" suggests a timeframe beyond a temporary activity or pastime. For example, it is commonly used to refer to "an occupation or profession engaged in as a life-work." 1 The New Shorter Oxford English Dictionary 339 (1993). Used as an adjective, it is often used as "pursuing a normally temporary activity as a lifework [e.g.,] a career soldier." Webster's New World Dictionary of the...
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State v. Gorman
...prompting the departure. Id. at II.D.2 The court of appeals has considered this statute in two recent cases. In State v. Flemino, 529 N.W.2d 501, 503-04 (Minn.App.1995), rev. denied (Minn. May 31, 1995), the court determined that the proof of the "pattern" did not require that the state dem......
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State v. Smith
...court will not disturb a district court's departure from a presumptive sentence absent a clear abuse of discretion. State v. Flemino, 529 N.W.2d 501, 503 (Minn.App.1995), review denied (Minn. May 31, 1995). Minnesota law allows a sentencing court to impose an aggravated durational departure......
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State v. Nesenson, C6-02-1744.
...which "targets offenders whose primary occupation is committing crimes or whose lifestyle is one of criminality." State v. Flemino, 529 N.W.2d 501, 503 (Minn. App. 1995), review denied (Minn. May 31, 1995). When imposing an executed felony sentence where the applicable sentencing guidelines......
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State v. Gorman, C6-94-1650
...he may be sentenced under the "career offender" statute even though the offenses are not of a similar type. See State v. Flemino, 529 N.W.2d 501, 504 (Minn.App.1995). Because we conclude that Gorman was properly sentenced under the career offender statute, we need not address the trial cour......