This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Sherman Eliaz Townsend, petitioner,
State of Minnesota,
Hennepin County District Court
File No. 97069878
Sherman E. Townsend, No. 100473, MCF-St. Cloud, 2305 Minnesota Boulevard, S.E., St. Cloud, MN 56304-2424 (for appellant)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for respondent)
Considered and decided by Peterson, Presiding Judge, Harten, Judge, and Halbrooks, Judge.
Appellant challenges the district court’s imposition of a 240-month sentence for his conviction of burglary in the first degree, arguing that (1) the district court improperly relied on “decayed” felony convictions in sentencing appellant under Minn. Stat. § 609.152, subd. 3 (1996), the career-offender statute; (2) the sentence was improper because he would have accepted the state’s offer to plead guilty to burglary in the second degree if he had been aware of the possibility that he could be sentenced to the statutory maximum as a career offender; and (3) the district court’s sentence was vindictive and was based on appellant’s choice to exercise his constitutional rights. Because we conclude that the district court was within its discretion in sentencing appellant, we affirm.
In the early morning of August 10, 1997, police were dispatched to a home in southeast Minneapolis after a report of a burglary in progress. Upon their arrival, officers learned that the burglar had cut and crawled through the screen of a first-floor window and assaulted two people in an upstairs bedroom. A short time later, officers spotted appellant Sherman Townsend within a few blocks of the home. Townsend was questioned by police and identified by a witness as the individual the witness had seen leaving the burglarized residence. Townsend was arrested and charged with two counts of burglary in the first degree in violation of Minn. Stat. § 609.582, subds. 1(a), (c), 1a (1996).
A jury found Townsend guilty of burglary in the first degree. The district court concluded that Townsend was a career offender under Minn. Stat. § 609.152, subd. 3 (1996), and sentenced Townsend to 240 months — the maximum sentence for a conviction of first-degree burglary and an upward durational departure from the presumptive sentence of 98 months.
This is Townsend’s third appearance before this court. He first challenged his conviction, but this court dismissed the appeal in order to permit Townsend to pursue postconviction relief. Townsend then filed a petition for postconviction relief with the district court, claiming ineffective assistance of counsel. The petition was denied. Townsend appealed the district court’s denial of postconviction relief to this court. In an unpublished opinion dated June 29, 1999, we affirmed the district court. Townsend v. State, No. C0-99-190, 1999 WL 430940 (Minn. App. June 29, 1999), review denied (Minn. Dec. 14, 1999). On July 19, 2002, Townsend again petitioned for postconviction relief, claiming that he was improperly sentenced. The district court denied Townsend’s petition, and this appeal follows.
D E C I S I O N
The state argues that Townsend waived his right to appeal the propriety of his sentence when he failed to raise the sentencing issue in his direct appeal and in his first petition for postconviction relief. Generally, on appeal “we will not consider claims which appellant raised or knew of and could have raised in earlier review.” Wayne v. State, 601 N.W.2d 440, 441 (Minn. 1999). Here, Townsend’s direct appeal was dismissed and remanded to the district court to allow him the opportunity to pursue postconviction relief. This court’s order dismissing Townsend’s direct appeal expressly stated that the order did not preclude a later appeal in the postconviction proceeding and did not limit the issues that could be raised in that appeal. Townsend petitioned the district court for postconviction relief, arguing ineffective assistance of counsel. The district court denied his petition, and we affirmed. Now, Townsend brings a second petition for postconviction relief, arguing that he was improperly sentenced. Because Townsend knew of the sentencing issue and could have raised it in his first petition for postconviction relief, he waived the right to raise the sentencing issue in a subsequent postconviction petition. But because the district court chose to address the merits of the sentencing issue, we will also address the merits of Townsend’s claim on appeal.
The state argues that Townsend waived the right to challenge his sentence when he failed to appeal his sentence within 90 days pursuant to Minn. R. Crim. P. 28.05. Minn. R. Crim. P. 28.05, subd. 1, states:
The following procedures shall apply to the appeal of a sentence imposed or stayed as permitted by these rules:
(1) Notice of Appeal and Briefs. Any party appealing a sentence shall file with the clerk of the appellate courts, within 90 days after judgment and sentencing, (a) a notice of appeal, * * * .
The Minnesota Supreme Court stated:
A criminal defendant has three basic means of appealing a sentencing issue to the Court of Appeals. First, he may obtain an expedited appeal of the sentence, reserving for an appeal from judgment of conviction any other issues he may want to raise. Second, he may appeal from the judgment of conviction, raising any issues, including sentencing issues. Third, if the time for direct appeal has expired, he may petition for postconviction relief on sentencing issues or other issues in the district court, then appeal the denial of the relief.
State v. Thomas, 371 N.W.2d 533, 534-55 (Minn. 1985) (internal citations omitted). The supreme court has rejected the argument that a defendant may not attack a sentencing departure in a postconviction proceeding. Jackson v. State, 329 N.W.2d 66, 67 (Minn. 1983).
Here, Townsend filed a timely appeal of the district court’s denial of Townsend’s petition for postconviction relief under Minn. R. Crim. P. 28.02. The state argues that, because Townsend is appealing his sentence, the appeal must be filed within 90 days of the imposition of sentence under Minn. R. Crim. P. 28.05, subd. 1. But because this appeal is from an order denying postconviction relief and not a direct appeal, the 90-day time limit set forth in Minn. R. Crim. P. 28.05 does not apply to this case. Because Townsend filed a timely appeal of the order denying postconviction relief, Townsend did not waive his right to appeal his sentence when he did not appeal within 90 days under Minn. R. Crim. P. 28.05.
Townsend contends that the district court abused its discretion by sentencing him to 240 months, the maximum sentence for a conviction of first-degree burglary. In support, Townsend argues that the district court improperly relied on felonies more than 15 years old in concluding that Townsend was a career offender under Minn. Stat. § 609.152, subd. 3 (1996).
This court reviews a postconviction proceeding to determine whether there was sufficient evidence to support the postconviction court’s findings and whether the postconviction court’s decision was an abuse of discretion. Sanders v. State, 628 N.W.2d 597, 600 (Minn. 2001). The decision to depart from the sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). “[A] sentencing court has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present.” State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999) (citation omitted). “When a district court departs [from the sentencing guidelines], it must articulate substantial and compelling reasons justifying the departure.” State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999) (citation omitted).
At the time Townsend was convicted and sentenced, Minn. Stat. § 609.152, subd. 3, stated:
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.
The Minnesota Sentencing Guidelines in effect at the time Townsend was convicted and sentenced stated:
Prior felony sentences or stays of imposition 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.
Minn. Sent. Guidelines II.B.1.e.
In State v. Worthy, 583 N.W.2d 270, 280 (Minn. 1998), Worthy argued that the trial court abused its discretion by relying on a 1972 felony conviction in imposing a double durational departure under the career-offender statute. Id. The supreme court held that Worthy’s argument failed under the plain language of the statute. Id. The supreme court explained:
The [career-offender statute] does not impose a time limit for includable prior convictions. Indeed, the very term “career” necessarily implies that the convictions may span over one’s lifetime. Therefore, the sentencing court did not err.
Here, as in Worthy, Townsend argues that the district court relied on a felony conviction that was too old to be used for purposes of the career-offender statute. But the plain language of Minn. Stat. § 609.152, subd. 3, did not include a time limit for includable prior convictions. The statute simply required four or more prior felony convictions and that the present offense was a felony that was committed as part of a pattern of criminal conduct. Minn. Stat. § 609.152, subd. 3. Here, the district court found that both conditions existed. Because there was no time limit on the age of the convictions that could be used under the career-offender statute, the court did not err in relying on felony convictions from more than 15 years earlier to find that Townsend was a career offender.
The record of the sentencing hearing shows that the district court carefully considered its sentencing decision. Joseph Spano, who prepared Townsend’s presentence investigation report, recommended that Townsend receive the maximum sentence of 240 months because of the nature of this offense and the pattern of his other offenses.
In determining the sentence, the district court considered that Townsend had committed at least eight prior burglaries, that he consistently returned to the same area of Minneapolis, where many students lived, and committed the same crime, and that Townsend consistently reoffended soon after being released from prison. Based on this record, we conclude that the district court was within its discretion in finding that Townsend was a career offender and in sentencing Townsend to the maximum sentence of 240 months.
4. Knowledge of Maximum Sentence
Townsend argues that he was not made aware of the possibility of being sentenced to the maximum sentence for a conviction of first-degree burglary under the career-offender statute until the sentencing hearing. Townsend asserts that he would have accepted the state’s offer to plead guilty to second-degree burglary if he had known that there was a possibility that he could receive a sentence of 240 months. The complaint stated that the maximum sentence for a conviction of burglary in the first degree was 20 years. When Townsend was offered the plea agreement, the court told him that the guidelines sentence for two counts of first-degree burglary, one of which could be sentenced consecutively, was 216 months. The court went on to say that “the worst that would happen would be 216 months.” Although Townsend had a constitutional right to a trial by jury, he had no such right to a plea bargain. See State v. Goulette, 258 N.W.2d 758, 762 (Minn. 1997) (holding that constitution does not give defendant right to have guilty plea accepted). Thus, even assuming that Townsend would have accepted the plea bargain if he had known that he could be sentenced to 240 months, Townsend is unable to show that his rights have been violated. Furthermore, when Townsend rejected the offer to plead guilty, he maintained that he was doing so because he was innocent of the charges against him. We are not persuaded that Townsend would have accepted the plea agreement if he had known that he could be sentenced to 240 months. Townsend received a trial by jury and a sentence in accordance with the law.
5. Claim of Vindictiveness
Finally, Townsend argues that because he was offered the opportunity to plead guilty to second-degree burglary before trial, a crime with a presumptive sentence of 48 months, the court’s sentence of 240 months was unduly vindictive. While Townsend was offered the opportunity to plead guilty to second-degree burglary, he was also advised that the court reserved the right to depart dispositionally or durationally and, that under the career-offender statute, he could have received a sentence as long as 120 months for a conviction of second-degree burglary. Townsend turned down the plea agreement with the knowledge that he could receive a much longer sentence than 48 months. As discussed above, the record shows that the district court carefully considered its sentencing decision and acted within its discretion. There is no merit to Townsend’s argument.
 Minn. Stat. § 609.152, subd. 3, was repealed effective August 1, 1998, and replaced by Minn. Stat. § 609.1095 (1998).