This opinion will be unpublished and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

A03-113

 

LaVelle Hassan Mayfield, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed October 7, 2003

Affirmed

Kalitowski, Judge

 

Polk County District Court

File No. K7-99-116

 

John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney, 223 East Seventh Street, Suite 101, Crookston, MN 56716 (for respondent)

 

            Considered and decided by Kalitowski, Presiding Judge; Toussaint, Chief Judge; and Schumacher, Judge.

 

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant contends the district court erred in denying his petition for postconviction relief, which challenged his 1999 sentence of 180 months for third-degree criminal sexual conduct on the grounds that he does not qualify as either a dangerous offender or a career offender.  We affirm.

D E C I S I O N

 

            “A petition for postconviction relief is a collateral attack on a conviction that carries a presumption of regularity.”  Hummel v. State, 617 N.W.2d 561, 563 (Minn. 2000) (citation omitted).  The postconviction petitioner “has the burden of establishing, by a fair preponderance of the evidence, facts which would warrant a reopening of the case.”  State v. Warren, 592 N.W.2d 440, 449 (Minn. 1999) (quotation omitted).  Appellate courts “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001) (citation omitted).  Further, the “decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Id. (citation omitted).

            For purposes of the dangerous-offender statute, this court upholds a district court’s determination that an offender is a danger to public safety if the record supports the finding.  State v. Branson, 529 N.W.2d 1, 4 (Minn. App. 1995), review denied (Minn. Apr. 18, 1995).  The dangerous-offender statute under which appellant was sentenced provides:

[The district court] may impose an aggravated durational departure from the presumptive imprisonment sentence . . . if the offender was at least 18 years old at the time the felony was committed, and:

(1)the court determines on the record at the time of sentencing that the offender has two or more prior convictions for violent crimes; and

(2)the court finds that the offender is a danger to public safety and specifies on the record the basis for the finding, which may include:

(i)  the offender’s past criminal behavior, such as the offender’s high frequency rate of criminal activity or juvenile adjudications; or

(ii)the fact that the present offense of conviction involved an aggravating factor that would justify a durational departure under the sentencing guidelines.

 

Minn. Stat. § 609.1095, subd. 2 (1998).

            Appellant concedes that he was older than 18 when he committed the felony, and that he has two previous convictions for violent crimes as defined by Minn. Stat. § 609.1095, subd. 1(d) (1998).  But appellant argues that the district court erred in finding him a danger to public safety and sentencing him to 180 months, rather than the presumptive sentence of 98 months.     

            The district court found appellant to be a danger to public safety because he was involved in six felonies in eight years and at least two of his three criminal sexual assaults involved juveniles.  Appellant contends that the present offense does not involve aggravating factors and therefore, his sentence punishes him for past behavior and fails to protect the public from future violence.  We disagree.  Appellant has a history of sexually assaulting females under the age of 16 and three of his six felony convictions qualify as violent crimes under Minn. Stat. § 609.1095, subd. 1(d).  Moreover, the supreme court recently addressed this issue and stated that an upward departure based on the dangerous-offender statute need not be based on aggravating factors but should be based on a defendant’s criminal history.  See Neal v. State, 658 N.W.2d 536, 545 (Minn. 2003) (“Departures under the [dangerous-offender] statute are justified on the basis of the offender’s criminal history, not on aggravating factors.”).  Thus, based on appellant’s criminal history, we conclude the district court did not abuse its discretion in finding appellant to be a danger to public safety and in applying an upward departure to the presumptive sentence.

            The district court also determined that appellant qualified as a career offender under Minn. Stat. § 609.1095, subd. 4 (1998), because he had five prior felony convictions and the offense at issue here was committed as part of a pattern of criminal conduct.  But appellant argues that under State v. Huston, 616 N.W.2d 282, 284 (Minn. App. 2000), which was released after appellant’s conviction became final, he does not have the requisite five sequential felony convictions to qualify as a career offender.  We agree.  According to the sentencing worksheet, appellant was convicted of two of his five felony convictions at the same time.  Therefore, the district court erred in sentencing appellant as a career offender.

            But because we have determined that the district court properly classified and sentenced appellant as a dangerous offender, any error regarding the career-offender classification was harmless.  See Minn. R. Crim. P. 31.01 (stating that errors not affecting substantial rights are harmless).  Thus, we conclude that the sentencing court’s departure from the presumptive sentence was supported by its classification of appellant as a dangerous offender and therefore the district court did not abuse its discretion in denying appellant’s petition for postconviction relief.

            Affirmed.