This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Johnnie Bloodsaw, Jr., petitioner,
State of Minnesota,
Filed March 18, 2003
Hennepin County District Court
File No. 00061928
Johnnie Bloodsaw, Jr., OID #102022, MCF-Moose Lake, 1000 Lakeshore Drive, Moose Lake, MN 55767 (pro se appellant)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Willis, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from an order denying his petition for postconviction relief, appellant argues that he is entitled to resentencing or to a new trial because he was erroneously sentenced under the career-offender statute and because he received ineffective assistance of counsel at trial. Because the postconviction court did not abuse its discretion by denying his petition, we affirm.
In June 2000, the state charged appellant Johnnie Bloodsaw Jr. with intentionally soliciting or inducing an individual to practice prostitution. Three months later, the state charged Bloodsaw with promoting the prostitution of an individual.
A jury found Bloodsaw guilty of promoting prostitution but acquitted him of the solicitation charge. At sentencing, the district court found that Bloodsaw had five or more prior felony convictions and that those convictions demonstrated a pattern of criminal conduct. On that basis, the court departed durationally from the sentencing guidelines and sentenced Bloodsaw to a 120-month prison term. This court subsequently affirmed Bloodsaw’s conviction. State v. Bloodsaw, No. C7-01-365 (Minn. App. Dec. 26, 2001). Bloodsaw now appeals from the denial of his petition for postconviction relief.
D E C I S I O N
Bloodsaw first argues that the district court “erred” by finding that he had six prior felony convictions and thereby sentencing him under Minn. Stat. § 609.1095, subd. 4 (2000), the career-offender statute. On review, we consider only whether sufficient evidence supports the postconviction court’s findings and will not reverse absent an abuse of discretion. Woodruff v. State, 608 N.W.2d 881, 884 (Minn. 2000). A petitioner seeking postconviction relief has the burden of establishing, by a fair preponderance of the evidence, facts that warrant relief. Minn. Stat. § 590.04, subd. 3 (2002); see also State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993).
The career-offender statute permits the court to depart from the presumptive guidelines and to sentence an offender up to the statutory maximum
if the judge finds and specifies on the record that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.
State v. Huston, 616 N.W.2d 282, 283 (Minn. App. 2000) (citation omitted). “[F]ive sequential felony offenses and convictions are required” to support a durational departure under the statute because it is intended to permit five “postconviction opportunities for reform.” Id. (citation omitted). This court has found that the career-offender statute does not apply to a “crime spree,” which occurs when multiple convictions result from criminal activity over a short period of time. Id. at 284.
Bloodsaw does not dispute that his present conviction is part of a pattern of criminal conduct. But he argues that some of his prior felonies resulted from a crime spree and do not, therefore, provide a basis for a departure under Huston. Bloodsaw’s felony history is:
Crime Date of Offense Date of Conviction Fourth-degree criminal sexual conduct June 1, 1986 Sept. 21, 1987 Solicitation of prostitution Sept. 6, 1988 Nov. 4, 1988 Third-degree criminal sexual conduct Nov. 21, 1988 Mar. 9, 1989 Third-degree criminal sexual conduct,
promotion of prostitution
Nov. 13, 1990 May 15, 1991 Aiding and abetting theft of more
Aug. 8, 1996 Dec. 3, 1996 Fifth-degree controlled-substance crime Feb. 12, 1998 Oct. 22, 1998
Bloodsaw’s history shows six sequential felony offenses and convictions, most of which are separated by at least a year. Bloodsaw’s offenses were not part of a crime spree within the meaning of Huston. See id. Because the record shows that Bloodsaw’s history of felony offenses and convictions meets the requirements of the career-offender statute, the postconviction court did not abuse its discretion in sentencing Bloodsaw as a career offender.
Bloodsaw also argues that he is “entitled to receive a new trial as a matter of law” because his trial attorney provided ineffective assistance of counsel. To succeed on a claim of ineffective assistance of counsel, Bloodsaw must show
[f]irst * * * that [his] counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Fox v. State, 474 N.W.2d 821, 826 (Minn. 1991) (quotation omitted). This court will not disturb the postconviction court’s decision either to grant or to deny a new trial absent an abuse of discretion. Wieland v. State, 457 N.W.2d 712, 714 (Minn. 1990) (citing Berry v. State, 364 N.W.2d 795, 796 (Minn.1985)). Because Bloodsaw has neither established facts showing that the performance of his trial counsel was deficient nor shown that any deficiency prejudiced him, the postconviction court did not abuse its discretion by denying Bloodsaw a new trial.