State v. Henderson, No. A03-1898.

• Decision Date: 01 December 2005
• Docket Number: No. A03-1898.
• Citation: 706 N.W.2d 758
• Parties: STATE of Minnesota, Respondent, v. John C. HENDERSON, Appellant.
• Court: Minnesota Supreme Court

Page 758

706 N.W.2d 758

STATE of Minnesota, Respondent, v. John C. HENDERSON, Appellant.

No. A03-1898.

Supreme Court of Minnesota.

December 1, 2005.

Cathryn Middlebrook, Asst. State Public Defender, Minneapolis, MN, for appellant.

Mike Hatch, Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Asst. County Attorney, Minneapolis, MN, for respondent.

Heard, considered, and decided by the court en banc.

OPINION

MEYER, Justice.

Appellant John C. Henderson seeks review of an unpublished court of appeals decision affirming his 144-month sentence for first-degree burglary as a career offender under Minn.Stat. § 609.1095 (2004). Henderson argues that his Sixth Amendment right to a jury trial was violated when the district court imposed a sentence that was an upward durational departure under the career offender statute, because the sentencing judge found that Henderson's offense was part of a pattern of criminal conduct. We reverse and remand for resentencing.

On December 6, 2002, Henderson was arrested and charged three days later with first-degree burglary. He entered a guilty plea at the beginning of his trial on May 28, 2003. The presumptive sentence for a conviction of first-degree burglary for Henderson under the Minnesota Sentencing Guidelines was 108 months. The district court departed and imposed a sentence of 144 months under the career offender statute, Minn.Stat. § 609.1095, after finding that Henderson had five or more prior felony convictions and that the present offense was committed as part of a pattern of criminal conduct.

Henderson appealed the durational departure to the court of appeals, arguing that his prior convictions did not establish a pattern of criminal conduct sufficient to sentence him as a career criminal. After this case was submitted to the court of appeals, the United States Supreme Court decided Blakely v. Washington, which held that a defendant's Sixth Amendment right to a jury trial is violated when an upward durational departure is added to a presumptive sentence based on findings of fact not made by a jury. Blakely v. Washington, 542 U.S. 296, 303-05, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The court of appeals affirmed Henderson's sentence, holding that the Blakely rule does not apply to upward departures under the career offender statute because the determination of a "pattern of criminal conduct" is a legal conclusion, not a finding of fact. State v. Henderson, No. A03-1898, 2004 WL 1925395 at *2 (Minn.App. Aug.31, 2004).

I.

The state argues that Henderson forfeited consideration of his Blakely claim on appeal by failing to raise it in the district court. We ordinarily do not decide issues raised for the first time on appeal, even constitutional questions of criminal procedure. State v. Sorenson, 441 N.W.2d 455, 457 (Minn.1989). We may address such issues, though, when the interests of justice require their consideration and doing so would not work an unfair surprise on a party. Id.; see Minn. R.Crim. P. 28.02, subd. 11; 29.04, subd. 11.

There are recognized circumstances in which the defendant's failure to raise a sentencing issue at the time sentence is imposed does not waive consideration of the issue on later review. See State v. Fields, 416 N.W.2d 734, 735 (Minn.1987) (allowing challenge to durational sentencing departure following revocation of stayed sentence); State v. White, 300 Minn. 99, 105-06, 219 N.W.2d 89, 93 (1974) (holding that statutory prohibition against double punishment for offenses committed in single behavioral incident cannot be waived); Minn. R.Crim. P. 27.03, subd. 9 (correction of unlawful sentence at any time); Minn.Stat. § 590.01, subd. 1 (2004) (postconviction remedy).¹ In other circumstances we have held that by failing to object at sentencing the defendant forfeited the right to consideration of a sentencing issue on appeal. State v. Lopez-Solis, 589 N.W.2d 290, 293 n. 3 (Minn.1999) (reasonableness of prosecution costs); Blondheim v. State, 573 N.W.2d 368, 368-69 (Minn.1998) (mandatory minimum fine); see also State v. Leja, 684 N.W.2d 442, 447 n. 2 (plurality opinion), 457 n. 3 (Blatz, C.J., dissenting) (Minn.2004) (together holding that failure to raise Apprendi/Blakely challenge to sentence on appeal waived issue).

In the interests of justice, we exercise our discretion to address Henderson's claim that his career offender sentence violates the holding in the Blakely decision. We do so because of the importance of determining Blakely's applicability to upward durational departures under the career offender statute, an issue that affects numerous cases statewide.

II.

We turn to the question of whether the district court could constitutionally impose an upward durational departure based on its determination that Henderson is a career offender under Minn.Stat. § 609.1095, subd. 4 (2004). To be sentenced as a career offender, the offender must have "five or more prior felony convictions" and must have committed the present offense as part of a "pattern of criminal conduct." Id. In this case, Henderson had previously been convicted of third-degree criminal sexual conduct (Minn.Stat. § 609.344 (2004)); felony theft from person (Minn.Stat. § 609.52, subd. 2 (2004)); second-degree burglary (Minn.Stat. § 609.582, subd. 2(a) (2004)); theft of a motor vehicle (Minn.Stat. § 609.52 subd. 1(10) (2004)); receiving stolen goods (Minn.Stat. § 609.53, subd. 1 (2004)); and first-degree burglary (Minn.Stat. § 609.582, subd. 1(a) (2004)).

Henderson does not dispute that the record establishes that he had five or more prior felony convictions. He argues that whether his present offense was committed as part of a pattern of criminal conduct is a finding of fact that must be made by a jury. The court of appeals characterized the pattern of criminal conduct conclusion as a legal one and determined that the district court had not abused its discretion in concluding that Henderson fit the pattern of a career criminal because, in the words of the court of appeals, "Henderson has a long history of larcenous conduct." Henderson, 2004 WL 1925395 at *2.

Henderson argues that, under Blakely and Apprendi, a conclusion that he met the definition of a pattern of criminal conduct is a finding of fact that must be made by a jury. In Apprendi v. New Jersey, the United States Supreme Court held that aside from the fact of a prior conviction the jury, not the judge alone, must find any fact that exposes a defendant to punishment beyond the maximum statutory punishment for a particular crime. 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Blakely, the Court examined Washington state's sentencing scheme, holding that the statutory maximum sentence to which upward departures may be added based on facts found by the jury is the presumptive sentence established by the state sentencing guidelines, rather than the absolute maximum sentence permitted by statute. 542 U.S. at 303-04, 124 S.Ct. 2531. Thus, even though the sentence imposed by the trial court in Blakely was within the range provided by statute, because that sentence was a substantial upward departure from the presumptive sentence established by Washington state's sentencing guidelines, the fact that the departure was based solely on the judge's own findings of aggravating facts and not solely on the jury's verdict rendered that sentence constitutionally infirm. Id. Under Apprendi and Blakely, any assigned punishment based on facts beyond those found by the jury's verdict or admitted by the defendant constitutes an infringement of the defendant's Sixth and Fourteenth Amendment rights.

The issue before us, then, is whether the determination of a pattern of criminal conduct presents a question of law within the district court's discretion or whether it necessarily requires fact-finding that only may be made by a jury. We previously examined the meaning of "pattern of criminal conduct" in State v. Gorman, 546 N.W.2d 5 (Minn.1996). In that case, the defendant was convicted of second-degree felony murder and first-degree manslaughter and was sentenced to 450 months, a double durational departure from the presumptive 225-month sentence. Id. at 7. The court based the departure on the career offender statute, finding that the defendant had five prior felony convictions (two for third-degree burglary, and one each for receiving stolen goods, possession of a stolen gun, and third-degree assault), and that the convictions were evidence of a pattern of criminal conduct. Id.

The defendant in Gorman appealed, arguing that his conduct did not fall within the meaning of "a pattern of criminal conduct." Id. at 8. The defendant claimed that the offense for which he was convicted, felony murder, was unrelated to his prior felony convictions, such that no pattern was established. Id. In responding to the defendant's argument, we first noted that "pattern" had been defined in previous case law and in other statutes. Id. at 8-9 (citing United States v. Oliver, 908 F.2d 260, 265-66 (8th Cir.1990); State v. Robinson, 539 N.W.2d 231, 237 (Minn.1995); Minn.Stat. § 609.902, subd. 6(3)(i) (1994)). We concluded that this precedent revealed a common understanding of "pattern" as "the organizing principle or relationship binding certain things, in this case incidents of criminal conduct, together. Such a `pattern of criminal conduct' may be demonstrated by proof of criminal conduct similar, but not identical, in motive, purpose, results, participants, victims or other shared characteristics." Gorman, 546 N.W.2d at 9. In addition, we held that a pattern of criminal conduct "may be demonstrated by reference to past felony or gross misdemeanor convictions or by proof, through clear and convincing evidence, of prior, uncharged acts of criminal conduct, where such acts are similar to the present offense in motive, purpose, results, participants, victims or other characteristics." Id.

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